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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
and
LEND LEASE ASSET MANAGEMENT, L.P.
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of July 10, 2002
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$1,082,600,757 (approximate)
Commercial Mortgage Pass-Through Certificates
Series 2002-MW1
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS............................................................................................3
SECTION 1.01 Defined Terms..............................................................................3
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES......63
SECTION 2.01 Conveyance of Mortgage Loans..............................................................63
SECTION 2.02 Acceptance of the Trust Fund by Trustee...................................................66
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of Mortgage Loans for Document
Defects and Breaches of Representations and Warranties.........................67
SECTION 2.04 Representations and Warranties of Depositor...............................................70
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC I by Trustee............................72
SECTION 2.06 Execution, Authentication and Delivery of Class R-I Certificates..........................72
SECTION 2.07 Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee................72
SECTION 2.08 Execution, Authentication and Delivery of REMIC II Certificates...........................73
SECTION 2.09 Execution, Authentication and Delivery of Class Z-I and Class Z-II Certificates...........73
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND......................................................73
SECTION 3.01 Administration of the Mortgage Loans......................................................73
SECTION 3.02 Collection of Mortgage Loan Payments......................................................75
SECTION 3.03 Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts..78
SECTION 3.04 Certificate Account, Interest Reserve Account, Additional Interest Account,
Distribution Account and Companion Distribution Account........................81
SECTION 3.05 Permitted Withdrawals From the Certificate Account, Interest Reserve Account, the
Additional Interest Account and the Distribution Account.......................85
SECTION 3.06 Investment of Funds in the Servicing Accounts, the Reserve Accounts, the Certificate
Account, the Interest Reserve Account, the Distribution Account, the
Additional Interest Account, the Companion Distribution Account and the
REO Account....................................................................90
SECTION 3.07 Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage.............92
SECTION 3.08 Enforcement of Alienation Clauses.........................................................94
SECTION 3.09 Realization Upon Defaulted Mortgage Loans; Required Appraisals............................97
SECTION 3.10 Trustee and Custodian to Cooperate; Release of Mortgage Files............................101
SECTION 3.11 Servicing Compensation...................................................................102
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SECTION 3.12 Property Inspections; Collection of Financial Statements; Delivery of Certain Reports....105
SECTION 3.13 Annual Statement as to Compliance........................................................108
SECTION 3.14 Reports by Independent Public Accountants................................................109
SECTION 3.15 Access to Certain Information............................................................109
SECTION 3.16 Title to REO Property; REO Account.......................................................112
SECTION 3.17 Management of REO Property...............................................................114
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO Properties................................117
SECTION 3.19 Additional Obligations of Master Servicer................................................123
SECTION 3.20 Modifications, Waivers, Amendments and Consents..........................................123
SECTION 3.21 Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping.......129
SECTION 3.22 Sub-Servicing Agreements.................................................................132
SECTION 3.23 Representations and Warranties of Master Servicer and Special Servicer...................135
SECTION 3.24 Sub-Servicing Agreement Representation and Warranty......................................138
SECTION 3.25 Designation of Controlling Class Representative..........................................138
SECTION 3.26 Servicing and Administration of the AB Mortgage Loans and the Companion Loans............140
SECTION 3.27 Abbey Intercreditor Agreement............................................................142
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS......................................................................143
SECTION 4.01 Distributions............................................................................143
SECTION 4.02 Statements to Certificateholders; CMSA Loan Periodic Update File.........................155
SECTION 4.03 P&I Advances.............................................................................160
SECTION 4.04 Allocation of Realized Losses and Additional Trust Fund Expenses; Allocation of
Certificate Deferred Interest; Allocation of Appraisal Reduction Amounts......163
SECTION 4.05 Calculations.............................................................................165
SECTION 4.06 Use of Agents............................................................................166
ARTICLE V THE CERTIFICATES.....................................................................................166
SECTION 5.01 The Certificates.........................................................................166
SECTION 5.02 Registration of Transfer and Exchange of Certificates....................................167
SECTION 5.03 Book-Entry Certificates..................................................................172
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen Certificates........................................173
SECTION 5.05 Persons Deemed Owners....................................................................174
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE CONTROLLING CLASS REPRESENTATIVE,
AND THE COMPANION PAYING AGENT................................................................174
SECTION 6.01 Liability of Depositor, Master Servicer and Special Servicer.............................174
SECTION 6.02 Merger, Consolidation or Conversion of Depositor or Master Servicer or Special Servicer..174
SECTION 6.03 Limitation on Liability of Depositor, Master Servicer and Special Servicer...............175
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SECTION 6.04 Resignation of Master Servicer and the Special Servicer..................................176
SECTION 6.05 Rights of Depositor and Trustee in Respect of Master Servicer and the Special Servicer...176
SECTION 6.06 Depositor, Master Servicer and Special Servicer to Cooperate with Trustee................177
SECTION 6.07 Depositor, Special Servicer and Trustee to Cooperate with Master Servicer................177
SECTION 6.08 Depositor, Master Servicer and Trustee to Cooperate with Special Servicer................177
SECTION 6.09 Designation of Special Servicer by the Controlling Class.................................177
SECTION 6.10 Master Servicer or Special Servicer as Owner of a Certificate............................178
SECTION 6.11 The Controlling Class Representative.....................................................179
SECTION 6.12 Companion Paying Agent...................................................................181
SECTION 6.13 Companion Register.......................................................................182
ARTICLE VII DEFAULT............................................................................................182
SECTION 7.01 Events of Default........................................................................182
SECTION 7.02 Trustee to Act; Appointment of Successor.................................................187
SECTION 7.03 Notification to Certificateholders.......................................................188
SECTION 7.04 Waiver of Events of Default..............................................................189
SECTION 7.05 Additional Remedies of Trustee Upon Event of Default.....................................189
ARTICLE VIII CONCERNING THE TRUSTEE AND THE FISCAL AGENT.......................................................189
SECTION 8.01 Duties of Trustee........................................................................189
SECTION 8.02 Certain Matters Affecting Trustee........................................................190
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans................................................................192
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates............................................192
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.................................192
SECTION 8.06 Eligibility Requirements for Trustee.....................................................193
SECTION 8.07 Resignation and Removal of Trustee.......................................................194
SECTION 8.08 Successor Trustee........................................................................195
SECTION 8.09 Merger or Consolidation of Trustee.......................................................195
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee............................................196
SECTION 8.11 Appointment of Custodians................................................................197
SECTION 8.12 Appointment of Authenticating Agents.....................................................197
SECTION 8.13 Access to Certain Information............................................................198
SECTION 8.14 Appointment of REMIC Administrators......................................................199
SECTION 8.15 Representations, Warranties and Covenants of Trustee.....................................200
SECTION 8.16 Reports to the Securities and Exchange Commission; Available Information.................201
SECTION 8.17 Maintenance of Mortgage File.............................................................201
SECTION 8.18 Appointment of Fiscal Agent..............................................................201
ARTICLE IX TERMINATION.........................................................................................203
SECTION 9.01 Termination Upon Repurchase or Liquidation of All Mortgage Loans.........................203
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SECTION 9.02 Additional Termination Requirements......................................................205
ARTICLE X ADDITIONAL TAX PROVISIONS............................................................................206
SECTION 10.01 REMIC Administration....................................................................206
SECTION 10.02 Grantor Trust Administration............................................................210
ARTICLE XI MISCELLANEOUS PROVISIONS............................................................................212
SECTION 11.01 Amendment.212
SECTION 11.02 Recordation of Agreement; Counterparts..................................................213
SECTION 11.03 Limitation on Rights of Certificateholders..............................................214
SECTION 11.04 Governing Law...........................................................................215
SECTION 11.05 Notices.................................................................................215
SECTION 11.06 Severability of Provisions..............................................................216
SECTION 11.07 Grant of a Security Interest............................................................216
SECTION 11.08 Xxxxxx Act..............................................................................216
SECTION 11.09 Successors and Assigns; Beneficiaries...................................................216
SECTION 11.10 Article and Section Headings............................................................217
SECTION 11.11 Notices to Rating Agencies..............................................................217
SECTION 11.12 Complete Agreement......................................................................218
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EXHIBITS
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition of "Class A-1
Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition of "Class A-2
Certificate"
Form of Class A-3 Certificate A-3 Section 1.01 Definition of "Class A-3
Certificate"
Form of Class A-4 Certificate A-4 Section 1.01 Definition of "Class A-4
Certificate"
Form of Class XC Certificate A-5 Section 1.01 Definition of "Class XC
Certificate"
Form of Class XP Certificate A-6 Section 1.01 Definition of "Class XP
Certificate"
Form of Class B Certificate A-7 Section 1.01 Definition of "Class B
Certificate"
Form of Class C Certificate A-8 Section 1.01 Definition of "Class C
Certificate"
Form of Class D Certificate A-9 Section 1.01 Definition of "Class D
Certificate"
Form of Class E Certificate A-10 Section 1.01 Definition of "Class E
Certificate"
Form of Class F Certificate A-11 Section 1.01 Definition of "Class F
Certificate"
Form of Class G Certificate A-12 Section 1.01 Definition of "Class G
Certificate"
Form of Class H Certificate A-13 Section 1.01 Definition of "Class H
Certificate"
Form of Class J Certificate A-14 Section 1.01 Definition of "Class J
Certificate"
Form of Class K Certificate A-15 Section 1.01 Definition of "Class K
Certificate"
Form of Class L Certificate A-16 Section 1.01 Definition of "Class L
Certificate"
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Form of Class M Certificate A-17 Section 1.01 Definition of "Class M
Certificate"
Form of Class N Certificate A-18 Section 1.01 Definition of "Class N
Certificate"
Form of Class O Certificate A-19 Section 1.01 Definition of "Class O
Certificate"
Form of Class R-I Certificate A-20 Section 1.01 Definition of "Class R-I
Certificate"
Form of Class R-II Certificate A-21 Section 1.01 Definition of "Class R-II
Certificate"
Form of Class Z-I Certificate A-22 Section 1.01 Definition of "Class Z-I
Certificate"
Form of Class Z-II Certificate A-23 Section 1.01 Definition of "Class Z-II
Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of "Mortgage
Loan Schedule"
Schedule of Exceptions to Mortgage File Delivery C-1 Section 2.02(a)
Form of Custodial Certification C-2 Section 2.02(a)
Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request
for Release"; Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request
for Release"; Section 3.10(b)
Calculation of NOI/Debt Service Coverage Ratios E Section 1.01 Definition of "Net
Operating Income"
Form of Updated Collection Report F Section 1.01 Definition of "Updated
Collection Report"
Form of Transferor Certificate G-1 Section 5.02(b)
Form of Transferee Certificate for QIBs G-2 Section 5.02(b)
Form of Transferee Certificate for Non-QIBs G-3 Section 5.02(b)
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Form of Transferee Certificate H Section 5.02(c)
Form of Transfer Affidavit and Agreement I-1 Section 5.02(d)(i)(2)
Pursuant to Section 5.02(d)(i)(2)
Form of Transferor Certificate Pursuant to I-2 Section 5.02(d)(i)(4)
Section 5.02(d)(i)(4)
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed Special J-2 Section 6.09
Servicer
Form of CMSA Property File K Section 3.12(c)
Form of Comparative Financial Status Report L Section 1.01 Definition of
"Comparative Financial Status Report"
Form of REO Status Report M Section 1.01 Definition of "REO Status
Report"
Form of Watch List N Section 1.01 Definition of "Watch List"
Form of Delinquent Loan Status Report O Section 1.01 Definition of "Delinquent
Loan Status Report"
Form of Historical Loan Modification Report P Section 1.01 Definition of "Historical
Loan Modification Report"
Form of Historical Liquidation Report Q Section 1.01 Definition of
"Historical Liquidation Report"
Form of NOI Adjustment Worksheet R Section 1.01 Definition of "NOI
Adjustment Worksheet"
Form of Operating Statement Analysis Report S Section 1.01 Definition of "Operating
Statement Analysis Report"
Form of Interim Delinquent Loan Status Report T Section 1.01 Definition of "Interim
Delinquent Loan Status Report"
Form of CMSA Loan Periodic Update File U Section 1.01 Definition of "CMSA Loan
Periodic Update File"
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Form of Certificateholder Confirmation V-1 Section 3.15
Certificate Request by Beneficial Holder
Form of Prospective Purchaser Certificate V-2 Section 3.15
Form of CMSA Bond File Report W Section 1.01 Definition of "CMSA Bond
File Report"
Form of CMSA Collateral Summary File X Section 1.01 Definition of "CMSA
Collateral Summary File"
Form of CMSA Financial File Y Section 1.01 Definition of "CMSA
Financial File"
Form of CMSA Loan Setup File Z Section 1.01 Definition of "CMSA Loan
Setup File"
Class XP Reference Rate AA Section 1.01 Definition of "Class XP
Reference Rate"
Form of Purchase Option Notice BB Section 3.18
Initial Companion Holders CC Section 6.13
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POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (this "Agreement") is
dated and effective as of July 10, 2002, among XXXXXXX XXXXX MORTGAGE INVESTORS,
INC., as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
LEND LEASE ASSET MANAGEMENT, L.P., as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in a trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be the Mortgage Loans.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all of the Mortgage Loans (exclusive of
that portion of the interest payments thereon that constitute Additional
Interest) and certain other related assets subject to this Agreement as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC I." The Class R-I Residual Interest will represent the sole
class of "residual interests" in REMIC I for purposes of the REMIC Provisions
under federal income tax law, and will be represented by the Class R-I
Certificates.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all of the REMIC I Regular Interests as
a REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC II". The Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Certificates will be designated as a separate "regular interest" in
REMIC II for purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the Class or Component
designation, the corresponding REMIC I Regular Interest (the "Corresponding
REMIC I Regular Interest"), the REMIC I Principal Balance, the Corresponding
Components of the Class X Certificates and the Original Class Principal Balance
for each Class of Sequential Pay Certificates (the "Corresponding
Certificates").
Corresponding Corresponding
Original Class REMIC I REMIC I Components of
Corresponding Principal Regular Principal Class X
Certificates Balance Interests (1) Balance Certificates (1)
Class A-1 $67,917,000 LA-1-1 $40,209,000 X-A-1-1
LA-1-2 $27,708,000 X-A-1-2
Class A-2 $97,857,000 LA-2-1 $14,931,000 X-A-2-1
LA-2-2 $41,500,000 X-A-2-2
Corresponding Corresponding
Original Class REMIC I REMIC I Components of
Corresponding Principal Regular Principal Class X
Certificates Balance Interests (1) Balance Certificates (1)
LA-2-3 $41,426,000 X-A-2-3
Class A-3 $120,974,000 LA-3-1 $5,974,000 X-A-3-1
LA-3-2 $94,000,000 X-A-3-2
LA-3-3 $21,000,000 X-A-3-3
Class A-4 $559,033,000 LA-4-1 $30,133,000 X-A-4-1
LA-4-2 $45,900,000 X-A-4-2
LA-4-3 $483,000,000 X-A-4-3
Class B $41,951,000 LB $41,951,000 X-B
Class C $46,011,000 LC $46,011,000 X-C
Class D $10,826,000 LD $10,826,000 X-D
Class E $18,945,000 LE $18,945,000 X-E
Class F $17,592,000 LF-1 $8,318,000 X-F-1
LF-2 $9,274,000 X-F-2
Class G $17,593,000 LG-1 $11,593,000 X-G-1
LG-2 $6,000,000 X-G-2
Class H $18,945,000 LH-1 $14,945,000 X-H-1
LH-2 $4,000,000 X-H-2
Class J $16,239,000 LJ-1 $13,039,000 X-J-1
LJ-2 $3,200,000 X-J-2
Class K $5,413,000 LK $5,413,000 X-K
Class L $8,120,000 LL $8,120,000 X-L
Class M $13,532,000 LM $13,532,000 X-M
Class N $5,413,000 LN $5,413,000 X-N
Class O $16,239,757 LO $16,239,757 X-O
(1) The REMIC I Regular Interest and the Components of the
Class X Certificates that correspond to any particular Class of Sequential Pay
Certificates also correspond
2
to each other and, accordingly, constitute the "Corresponding REMIC I Regular
Interest" and the "Corresponding Components" respectively, with respect to each
other.
Three mortgage loans in the original principal amount of
$89,073,643 (the "Companion Loans", as defined below) are not part of the Trust
Fund but are each secured by a Mortgage that is the same as a Mortgage Loan that
is part of the Trust Fund (the "AB Mortgage Loans", as defined below). As and to
the extent provided herein, the Companion Loans will be serviced and
administered in accordance with this Agreement. Amounts attributable to the
Companion Loans will not be assets of the Trust Fund, and will be beneficially
owned by the Companion Holders.
The portion of the Trust Fund consisting of: (i) the
Additional Interest and the Additional Interest Account and (ii) amounts held
from time to time in the Additional Interest Account that represent Additional
Interest shall be treated as a grantor trust (the "Grantor Trust") for federal
income tax purposes. As provided herein, the Trustee shall take all actions
necessary to ensure that the portion of the Trust Fund consisting of the Grantor
Trust Assets maintains its status as a "grantor trust" under federal income tax
law and not be treated as part of REMIC I or REMIC II.
In consideration of the mutual agreements herein contained,
the Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"AB Mortgage Loan": Each of the Burbank Empire Center Mortgage
Loan, the Radisson Mortgage Loan or the TRW Mortgage Loan, and, collectively,
the "AB Mortgage Loans".
"Abbey Intercreditor Agreement": That certain intercreditor
agreement, dated January 2002, between Wachovia Bank, National Association
(formerly First Union National Bank), as mortgage lender and Capri Select
Income, LLC, as mezzanine lender.
"Abbey Mezzanine Lender": The "Mezzanine Lender" as defined in
the Abbey Intercreditor Agreement.
"Acceptable Insurance Default": With respect to any Mortgage
Loan, any default under the related Mortgage Loan Documents resulting from: (i)
the exclusion of acts of terrorism
3
from coverage under the related "all risk" casualty insurance policy maintained
on the subject Mortgaged Property and (ii) the related Mortgagor's failure to
obtain insurance that specifically covers acts of terrorism, but only if the
Special Servicer has determined, in its reasonable judgment, in accordance with
the Servicing Standard, that: (a) such insurance is not available at
commercially reasonable rates and the subject hazards are not commonly insured
against by prudent owners of similar real properties in similar locales (but
only by reference to such insurance that has been obtained by such owners at
current market rates), or (b) such insurance is not available at any rate, or
(c) the related Mortgage or Mortgage Loan documents do not require the Mortgagor
to obtain such insurance. Subject to the Servicing Standard, in making any of
the determinations required in subclause (a) or (b) of this definition, the
Special Servicer shall be entitled to rely on the opinion of an insurance
consultant.
"Accrued Certificate Interest": With respect to any Class of
Regular Certificates (other than the Class XC and the Class XP Certificates) for
any Distribution Date, one month's interest at the Pass-Through Rate applicable
to such Class of Certificates for such Distribution Date, accrued for the
related Interest Accrual Period on the related Class Principal Balance
outstanding immediately prior to such Distribution Date; and, with respect to
the Class XC and the Class XP Certificates for any Distribution Date, the sum of
the Accrued Component Interest for the related Interest Accrual Period for all
of their respective Components for such Distribution Date. Accrued Certificate
Interest shall be calculated on a 30/360 Basis and, with respect to any Class of
Regular Certificates for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to each Component
of the Class XC or the Class XP Certificates for any Distribution Date, one
month's interest at the Class XC Strip Rate or Class XP Strip Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360 Basis and, with
respect to any Component and any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date": With respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulations Section 1.856-6(b)(1), which is
the first day on which the Trust Fund is treated as the owner of such REO
Property for federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar month in a year
assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest on an Actual/360 Basis and that is identified as an Actual/360 Mortgage
Loan on the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been
4
paid), together with all interest, if any, accrued at the related Mortgage Rate
on such deferred interest. For purposes of this Agreement, Additional Interest
on an ARD Loan or any successor REO Loan shall be deemed not to constitute
principal or any portion thereof and shall not be added to the unpaid principal
balance or Stated Principal Balance of such ARD Loan or successor REO Loan,
notwithstanding that the terms of the related Mortgage Loan documents so permit.
To the extent that any Additional Interest is not paid on a current basis, it
shall be deemed to be deferred interest.
"Additional Interest Account": The segregated account or
accounts created and maintained by the Trustee pursuant to Section 3.04(d) which
shall be entitled "LaSalle Bank National Association as Trustee, in trust for
the registered holders of Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1, Additional Interest Account." The
Additional Interest Account shall not be an asset of any of REMIC I or REMIC II.
"Additional Interest Rate": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the per annum rate
at which such Mortgage Loan accrues interest after the Anticipated Repayment
Date (in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d)
and 4.03(d), interest payable to the Master Servicer, the Trustee and the Fiscal
Agent on Advances (to the extent not offset by Penalty Interest and late payment
charges as provided herein) and amounts payable to the Special Servicer in
connection with inspections of Mortgaged Properties required pursuant to the
first sentence of Section 3.12(a) (and not otherwise paid from Penalty Interest
and late payment charges as provided herein), as well as (without duplication)
any of the expenses of the Trust Fund that may be withdrawn (x) pursuant to any
of clauses (viii), (ix), (xi), (xii), (xiii) and (xix) of Section 3.05(a) out of
collections on the related Mortgage Loans or REO Properties or out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account as indicated in such clauses of Section 3.05(a) or (y)
pursuant to clause (ii) or any of clauses (iv) through (vi) of Section 3.05(b)
out of general collections on the Mortgage Loans and any REO Properties on
deposit in the Distribution Account; provided that for purposes of the
allocations contemplated by Section 4.04 no such expense shall be deemed to have
been incurred by the Trust Fund until such time as the payment thereof is
actually made from the Certificate Account or the Distribution Account, as the
case may be.
"Additional Yield and Prepayment Amount": With respect to any
Distribution Date and the Regular Certificates (other than the Class X
Certificates and any Excluded Class) entitled to distributions of principal
pursuant to Section 4.01(a) on such Distribution Date, provided that a Yield
Maintenance Charge and/or Prepayment Premium was actually collected on a
Mortgage Loan or an REO Loan during the related Collection Period, the product
of (a) such Yield Maintenance Charge and/or Prepayment Premium net of Workout
Fees and Principal Recovery Fees payable therefrom multiplied by (b) a fraction,
which in no event will be greater than one, the numerator of which is equal to
the positive excess, if any, of (i) the Pass-Through Rate for the Regular
Certificates then receiving principal over (ii) the related Discount Rate, and
the denominator of which is equal to the positive excess, if any, of (i) the
Mortgage
5
Rate for such Mortgage Loan or REO Loan, as the case may be, over (ii) the
related Discount Rate, multiplied by (c) a fraction, the numerator of which is
equal to the amount of principal distributable on such Regular Certificates on
such Distribution Date pursuant to Section 4.01(a), and the denominator of which
is equal to the Principal Distribution Amount for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date
specified in the related Mortgage Note after which the Mortgage Rate for such
ARD Loan will increase as specified in the related Mortgage Note (other than as
a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal
of the related Mortgaged Property from an Independent Appraiser selected by the
Special Servicer or the Master Servicer, prepared in accordance with 12 CFR
ss.225.62 and conducted in accordance with the standards of the American
Appraisal Institute by an Independent Appraiser, which Independent Appraiser
shall be advised to take into account the factors specified in Section 3.09(a),
any available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the
sum of, as calculated by the Master Servicer as of the first Determination Date
immediately succeeding the Master Servicer obtaining knowledge of the occurrence
of the Required Appraisal Date if no new Required Appraisal (or letter update or
internal valuation) is required or the date on which a Required Appraisal (or
letter update or internal valuation, if applicable) is obtained and each
Determination Date thereafter so long as the related Mortgage Loan remains a
Required Appraisal Mortgage Loan (without duplication), (i) the Stated Principal
Balance of the subject Required Appraisal Mortgage Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or the
Fiscal Agent, all unpaid interest on the Required Appraisal Mortgage Loan
through the most recent Due Date prior to such Determination Date at a per annum
rate equal to the related Net Mortgage Rate (exclusive of any portion thereof
that constitutes Additional Interest), (iii) all accrued but unpaid Servicing
Fees and all accrued but unpaid Additional Trust Fund Expenses in respect of
such Required Appraisal Mortgage Loan, (iv) all related unreimbursed Advances
(plus accrued interest thereon) made by or on behalf of the Master Servicer, the
Trustee or the Fiscal Agent with respect to such Required Appraisal
6
Mortgage Loan and (v) all currently due and unpaid real estate taxes and
unfunded improvement reserves and assessments, insurance premiums, and, if
applicable, ground rents in respect of the related Mortgaged Property over (b)
an amount equal to the sum of (i) the Required Appraisal Value and (ii) all
escrows, reserves and letters of credit held as additional collateral held with
respect to such Required Appraisal Mortgage Loan. If the Special Servicer fails
to obtain a Required Appraisal (or letter update or internal valuation, if
applicable) within the time limit described in Section 3.09(a), the Appraisal
Reduction Amount for the related Required Appraisal Mortgage Loan will equal 25%
of the outstanding principal balance of such Required Appraisal Mortgage Loan,
to be adjusted upon receipt of a Required Appraisal or letter update or internal
valuation, if applicable.
"Appraised Value": With respect to each Mortgaged Property,
the appraised value thereof based upon the most recent Appraisal (or letter
update or internal valuation, if applicable) that is contained in the related
Servicing File.
"ARD Loan": Any Mortgage Loan that provides that if the
unamortized principal balance thereof is not repaid on its Anticipated Repayment
Date, such Mortgage Loan will accrue Additional Interest at the rate specified
in the related Mortgage Note and the Mortgagor is required to apply excess
monthly cash flow generated by the related Mortgaged Property to the repayment
of the outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon
Mortgage Loan for its Stated Maturity Date (provided that such Mortgage Loan has
not been paid in full and no other Liquidation Event has occurred in respect
thereof on or before such Stated Maturity Date) and for any Due Date thereafter
as of which such Mortgage Loan remains outstanding and part of the Trust Fund,
the Periodic Payment of principal and/or interest deemed to be due in respect
thereof on such Due Date that would have been due in respect of such Mortgage
Loan on such Due Date if the related Mortgagor had been required to continue to
pay principal in accordance with the amortization schedule, if any, and to
accrue interest at the Mortgage Rate, in effect on the Closing Date and without
regard to the occurrence of its Stated Maturity Date. With respect to any REO
Loan, for any Due Date therefor as of which the related REO Property remains
part of the Trust Fund, the Periodic Payment of principal and/or interest deemed
to be due in respect thereof on such Due Date that would have been due in
respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding (or, if the predecessor Mortgage Loan was a Balloon Mortgage Loan
and such Due Date coincides with or follows what had been its Stated Maturity
Date, the Assumed Scheduled Payment that would have been deemed due in respect
of the predecessor Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
7
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of, without duplication, (i)
the aggregate of the amounts on deposit in the Certificate Account and the
Distribution Account as of the close of business on the related Determination
Date and the amounts collected by or on behalf of the Master Servicer as of the
close of business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer, the Trustee or the Fiscal Agent for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount transferred from the REO Account (if established) to the
Certificate Account during the month of such Distribution Date, on or prior to
the P&I Advance Date in such month, pursuant to Section 3.16(c), (iv) the
aggregate amount deposited by the Master Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls, and (v) for each Distribution Date occurring in March, the
aggregate of the Interest Reserve Amounts in respect of each Interest Reserve
Loan deposited into the Distribution Account pursuant to Section 3.05(c), net of
(b) the portion of the amount described in subclauses (a)(i) and (a)(iii) of
this definition that represents one or more of the following: (i) collected
Periodic Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any amounts payable or reimbursable to any Person from
(A) the Certificate Account pursuant to clauses (ii)-(xiv), (xviii) and (xix) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses (ii) - (vi)
of Section 3.05(b), (iii) Prepayment Premiums and Yield Maintenance Charges,
(iv) Additional Interest, (v) with respect to the Distribution Date occurring in
February of each year and in January of each year that is not a leap year, the
Interest Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn from the Certificate Account and deposited in the Interest Reserve
Account in respect of such Distribution Date and held for future distribution
pursuant to Section 3.04(c) and (vi) any amounts deposited in the Certificate
Account or the Distribution Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date provides for an amortization schedule extending beyond its Stated Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan
as of any date of determination, the Scheduled Payment payable on the Stated
Maturity Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
8
"Borrower Reserve Agreement": With respect to any Mortgage
Loan, the related borrower reserve agreement, replacement reserve agreement or
similar agreement executed by the Mortgagor and setting forth the terms and
amounts required to be reserved or escrowed for the related Mortgaged Property,
in each case pledged as additional collateral under the related Mortgage.
"Breach": As defined in Section 2.03(a).
"Burbank Empire Center Companion Loan": The junior companion
loan which relates to the Burbank Empire Center Mortgage Loan.
"Burbank Empire Center Mortgage Loan": The Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 2, originated by
Wachovia Bank, National Association.
"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York or the city in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is Chicago,
Illinois), or the offices of the Master Servicer (which as of the Closing Date
is Charlotte, North Carolina), or the offices of the Special Servicer which as
of the Closing Date is Dallas, Texas, are located, are authorized or obligated
by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1, as executed by
the Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for Certificateholders, which shall be entitled
"Wachovia Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee, on behalf of and in trust for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1."
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is reduced by the
amount of Mortgage Deferred Interest allocable to such Class on any Distribution
Date.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current Class
Principal Balance, Class XC Notional Amount or Class XP Notional Amount, as
applicable, of such Class of Regular Certificates and the denominator of which
is the Original Class Principal Balance or Original Notional Amount of such
Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class XC or
Class XP Certificate, as of any date of determination, the then notional amount
of such Certificate equal to
9
the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class XC or Class XP Notional Amount, as applicable.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as reflected on the
books of the Depository or on the books of a Depository Participant or on the
books of an indirect participating brokerage firm for which a Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any
Sequential Pay Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
Percentage Interest evidenced by such Certificate, multiplied by (b) the then
Class Principal Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and, (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in its respective capacity as such
(except with respect to amendments or waivers referred to in Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or permitted to be
made by the Majority Subordinate Certificateholder or the Controlling Class
Representative and any election, removal or replacement of the Special Servicer
or the Controlling Class Representative pursuant to Section 6.09), any
Certificate registered in the name of the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent as
the case may be, or any Certificate registered in the name of any of their
respective Affiliates, shall be deemed not to be outstanding, and the Voting
Rights to which it is entitled shall not be taken into account in determining
whether the requisite percentage of Voting Rights necessary to effect any such
consent, approval or waiver that relates to it has been obtained. The
Certificate Registrar shall be entitled to request and rely upon a certificate
of the Depositor, the Master Servicer or the Special Servicer in determining
whether a Certificate is registered in the name of an Affiliate of such Person.
All references herein to "Holders" or "Certificateholders" shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the
same alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1, Class A-2, Class A-3
and Class A-4 Certificates.
10
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-3 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class A-4 Certificate": Any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions. "
"Class B Certificate": Any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-7 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-8 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-9 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-10 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-12 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
11
"Class K Certificate": Any one of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-13 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-14 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-15 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-16 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class O Certificate": Any one of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-17 attached hereto, and evidencing a "regular interest" in REMIC II for
purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of
any Class of Sequential Pay Certificates outstanding from time to time. As of
the Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be reduced by the amount of any distributions of principal
made thereon on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and shall be further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses allocated thereto on such Distribution Date
pursuant to Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Sequential Pay Certificates shall not constitute distributions of principal and
shall not result in reduction of the related Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-18 attached hereto, and evidencing the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-19 attached hereto, and evidencing the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class X Certificates": The Class XC and Class XP Certificates
"Class XC Certificate": Any one of the Certificates with a
"Class XC" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and
12
evidencing the Components and a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class XC Notional Amount": With respect to the Class XC
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class XC Strip Rate": With respect to any Class of Components
(other than Components which are Class XP Components which are included for the
purposes of calculating the Class XP Notional Amount for such Distribution Date)
for any Distribution Date, a rate per annum equal to (i) the Weighted Average
Net Mortgage Rate for such Distribution Date, minus (ii) the Pass-Through Rate
for the Corresponding Certificates, and in the case of Components which are
Class XP Components which are included for the purposes of calculating the Class
XP Notional Amount for such Distribution Date (i) for any Distribution Date
occurring on or before the Class XP Termination Date for such Class XP
Component, (x) the Weighted Average Net Mortgage Rate for such Distribution Date
minus (y) the sum of the Pass-Through Rate for the Corresponding Certificates
for such Distribution Date and the Class XP Strip Rate for such Class XP
Component for such Distribution Date, and (ii) for any Distribution Date
occurring after the Class XP Termination Date for such Class XP Component, a
rate per annum equal to (x) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XC Strip Rate be less
than zero).
"Class XP Certificate": Any one of the Certificates with a
"Class XP" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing the Class XP Components and a "regular
interest" in REMIC II for purposes of the REMIC Provisions.
"Class XP Components": Each of Component X-A-1-1, Component
X-A-1-2, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component
X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component X-A-4-1, Component
X-A-4-2, Component X-A-4-3, Component X-B, Component X-C, Component X-D,
Component X-E, Component X-F-1, Component X-F-2, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-J-I and Component X-J-2.
"Class XP Notional Amount": (i) With respect to any
Distribution Date on or prior to the Distribution Date in July 2003, the sum of
(a) the lesser of $27,708,000 and the then Component Notional Amount of
Component X-A-1-2 and (b) the then Component Notional Amounts of Component
X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component X-A-3-1, Component
X-A-3-2, Component X-A-3-3, Component X-A-4-1, Component X-A-4-2, Component
X-A-4-3, Component X-B, Component X-C, Component X-D, Component X-E, Component
X-F-1, Component X-F-2, Component X-G-1, Component X-G-2, Component X-H-1,
Component X-H-2, Component X-J-I and Component X-J-2;
(ii) With respect to any Distribution Date after the
Distribution Date in July 2003, through and including the Distribution Date in
July 2004, the sum of (a) the lesser of $82,926,000 and the Component Notional
Amounts of Component X-A-2-2 and Component X-
13
A-2-3 and (b) the then Component Notional Amounts of Component X-A-3-1,
Component X-A-3-2, Component X-A-3-3, Component X-A-4-1, Component X-A-4-2,
Component X-A-4-3, Component X-B, Component X-C, Component X-D, Component X-E,
Component X-F-1, Component X-F-2, Component X-G-1, Component X-G-2, Component
X-H-1, Component X-H-2, Component X-J-1 and Component X-J-2;
(iii) With respect to any Distribution Date after the
Distribution Date in July 2004, through and including the Distribution Date in
July 2005, the sum of (a) the lesser of $41,426,000 and the then Component
Notional Amount of Component X-A-2-3 and (b) the then Component Notional Amounts
of Component X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component X-A-4-1,
Component X-A-4-2, Component X-A-4-3, Component X-B, Component X-C, Component
X-D, Component X-E, Component X-F-1, Component X-F-2, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-J-1 and Component X-J-2;
(iv) With respect to any Distribution Date after the
Distribution Date in July 2005, through and including the Distribution Date in
July 2006, the sum of (a) the lesser of $115,000,000 and the then Component
Notional Amounts of Component X-A-3-2 and Component X-A-3-3, (b) the then
Component Notional Amounts of Component X-A-4-1, Component X-A-4-2, Component
X-A-4-3, Component X-B, Component X-C, Component X-D, Component X-E, Component
X-F-1, Component X-F-2, Component X-G-1, Component X-G-2, Component X-H-1 and
Component X-H-2 and (c) the lesser of $3,200,000 and the then Component Notional
Amount of Component X-J-2;
(v) With respect to any distribution date after the
Distribution Date in July 2006, through and including the Distribution Date in
July 2007, the sum of (a) the lesser of $21,000,000 and the then Component
Notional Amount of Component X-A-3-3, (b) the then Component Notional Amounts of
Component X-A-4-1, Component X-A-4-2, Component X-A-4-3, Component X-B,
Component X-C, Component X-D, Component X-E, Component X-F-1, Component X-F-2,
Component X-G-1 and Component X-G-2 and (c) the lesser of $4,000,000 and the
then Component Notional Amount of Component X-H-2;
(vi) With respect to any Distribution Date after the
Distribution Date in July 2007, through and including the Distribution Date in
July 2008, the sum of (a) the lesser of $528,900,000 and the then Component
Notional Amounts of Component X-A-4-2 and Component X-A-4-3, (b) the then
Component Notional Amounts of Component X-B, Component X-C, Component X-D,
Component X-E, Component X-F-1, Component X-F-2 and (c) the lesser of $6,000,000
and the then Component Notional Amount of Component X-G-2;
(vii) With respect to any Distribution Date after the
Distribution Date in July 2008 through and including the Distribution Date in
July 2009, the sum of (a) the lesser of $483,000,000 and the then Component
Notional Amount of Component X-A-4-3, (b) the then Component Notional Amounts of
Component X-B, Component X-C, Component X-D and Component X-E and (c) the lesser
of $9,274,000 and the then Component Notional Amount of Component X-F-2; and
14
(viii) With respect to any Distribution Date after the
Distribution Date in July 2009, $0.
"Class XP Reference Rate": For any Distribution Date, the rate
per annum corresponding to such Distribution Date on Exhibit AA.
"Class XP Strip Rate": With respect to each of the Class XP
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the Class XP Termination Date for such
Class XP Component, (x) the lesser of (I) the Weighted Average Net Mortgage Rate
for such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate in effect for such
Distribution Date for the Corresponding Certificates (provided that in no event
shall any Class XP Strip Rate be less than zero), and (ii) for any Distribution
Date occurring after the Class XP Termination Date for such Class XP Component,
0% per annum.
"Class XP Termination Date": With respect to each Class XP
Component, the following Distribution Date:
Class XP Component Distribution Date
------------------ -----------------
X-A-1-1 July 2003
X-A-1-2 July 2003
X-A-2-1 July 2003
X-A-2-2 July 2004
X-A-2-3 July 2005
X-A-3-1 July 2005
X-J-1 July 2005
X-A-3-2 July 2006
X-H-1 July 2006
X-J-2 July 2006
X-A-3-3 July 2007
X-A-4-1 July 2007
X-G-1 July 2007
X-H-2 July 2007
X-A-4-2 July 2008
X-F-1 July 2008
X-G-2 July 2008
X-A-4-3 July 2009
X-B July 2009
X-C July 2009
X-D July 2009
X-E July 2009
X-F-2 July 2009
"Class Z-I Certificate": Any one of the Certificates with a
"Class Z-I" designation on the face thereof, substantially in the form of
Exhibit A-20 attached hereto, and evidencing a proportionate interest in the
Additional Interest that is described in Section 4.01(b).
15
"Class Z-II Certificate": Any one of the Certificates with a
"Class Z-II" designation on the face thereof, substantially in the form of
Exhibit A-21 attached hereto, and evidencing a proportionate interest in the
Additional Interest that is described in Section 4.01(b).
"Closing Date": July 11, 2002.
"CMSA": The Commercial Mortgage Securities Association
(formerly the Commercial Real Estate Secondary Market and Securitization
Association) or any successor organization.
"CMSA Bond File": The monthly report in the "CMSA Bond File"
format substantially in the form of and containing the information called for
therein, a form of which is attached hereto as Exhibit W, or such other form for
the presentation of such information as may be approved by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Bond File" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The monthly report in the
"CMSA Collateral Summary File" format substantially in the form of and
containing the information called for therein, a form of which is attached
hereto as Exhibit X, or such other form for the presentation of such information
as may be approved by the CMSA for commercial mortgage securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "CMSA Collateral Summary File"
available as of the Closing Date on the CMSA website, is reasonably acceptable
to the Trustee.
"CMSA Financial File": The monthly report in the "CMSA
Financial File" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a form of which is
attached hereto as Exhibit Y, or such other form for the presentation of such
information as may be approved by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Financial
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Master Servicer or the Special Servicer, as applicable.
"CMSA Loan Periodic Update File": The monthly report in the
"CMSA Loan Periodic Update File" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a form of
which is attached hereto as Exhibit U, or such other form for the presentation
of such information as may be approved by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "CMSA Loan
Periodic Update File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Trustee, Master Servicer and the Special Servicer.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a form of which is attached hereto as
Exhibit Z, or such other form for the presentation of
16
such information as may be approved by the CMSA for commercial mortgage
securities transactions generally and, insofar as it requires the presentation
of information in addition to that called for by the form of the "CMSA Loan
Setup File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Trustee, Master Servicer and the Special Servicer.
"CMSA Property File": The monthly report in the "CMSA Property
File" format substantially in the form of and containing the information called
for therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit K, or such other form for the presentation of such information as may be
approved by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Property File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Master Servicer or the
Special Servicer, as applicable.
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of the Treasury
promulgated thereunder.
"Collection Period": With respect to any Distribution Date,
the period commencing on the day immediately following the Determination Date
for the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date.
"Companion Distribution Account": With respect to each
Companion Loan, the separate account created and maintained by the Companion
Paying Agent pursuant to Section 3.04(e) and held on behalf of the related
Companion Holder, which shall be entitled "Wachovia Bank, National Association,
as Companion Paying Agent for the Companion Holder of the related Companion
Loan". The Companion Distribution Account shall not be an asset of the Trust
Fund, but instead the Companion Distribution Account shall be held by the
Companion Paying Agent on behalf of the Companion Holder. Any such account shall
be an Eligible Account.
"Companion Holder": With respect to any Companion Loan, the
owner of the Mortgage Note representing such Companion Loan. As of the Closing
Date, the Companion Holders of the Companion Loans are (a)(1) MW1-2002 LLC with
respect to the Radisson B Note and (2) I.L. Finance Company, LLC with respect to
the Radisson C Note, (b) Capital Lease Funding, LLC with respect to the TRW
Companion Loan and (c) MONY Life Insurance Company with respect to the Burbank
Empire Center Companion Loan.
"Companion Loan": Each of the Burbank Empire Center Companion
Loan, the Radisson Companion Loan or the TRW Companion Loan, and, collectively,
the "Companion Loans".
"Companion Paying Agent": The paying agent appointed pursuant
to Section 6.12.
"Companion Register": The register maintained and the
registrar appointed pursuant to Section 6.13.
17
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit L attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
calculated as of the last day of the calendar month immediately preceding the
preparation of such report, for (i) each of the three immediately preceding
monthly periods (to the extent such information is available), (ii) the most
current available year-to-date, (iii) the previous two full fiscal years stated
separately, and (iv) the "base year" (representing the original analysis of
information used as of the Cut-off Date). For the purposes of the Master
Servicer's production of any such report that is required to state information
for any period prior to the Cut-off Date, the Master Servicer may conclusively
rely (without independent verification), absent manifest error, on information
provided to it by the related Mortgage Loan Seller.
"Component": Each of Component X-A-1-1, Component X-A-1-2,
Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component X-A-3-1,
Component X-A-3-2, Component X-A-3-3, Component X-A-4-1, Component X-A-4-2,
Component X-A-4-3, Component X-B, Component X-C, Component X-D, Component X-E,
Component X-F-1, Component X-F-2, Component X-G-1, Component X-G-2, Component
X-H-1, Component X-H-2, Component X-J-1, Component X-J-2, Component X-K,
Component X-L, Component X-M, Component X-N and Component X-O.
"Component X-A-1-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any date of
determination.
"Component X-A-1-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-2 as of any date of
determination.
"Component X-A-2-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-1 as of any date of
determination.
"Component X-A-2-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-2 as of any date of
determination.
"Component X-A-2-3": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-2-3 as of any date of
determination.
18
"Component X-A-3-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3-1 as of any date of
determination.
"Component X-A-3-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3-2 as of any date of
determination.
"Component X-A-3-3": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-3-3 as of any date of
determination.
"Component X-A-4-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4-1 as of any date of
determination.
"Component X-A-4-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4-2 as of any date of
determination.
"Component X-A-4-3": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LA-4-3 as of any date of
determination.
"Component X-B": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LB as of any date of
determination.
"Component X-C": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LC as of any date of
determination.
"Component X-D": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LD as of any date of
determination.
"Component X-E": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a
19
Component Notional Amount equal to the then current REMIC I Principal Balance of
REMIC I Regular Interest LE as of any date of determination.
"Component X-F-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF-1 as of any date of
determination.
"Component X-F-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LF-2 as of any date of
determination.
"Component X-G-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG-1 as of any date of
determination.
"Component X-G-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LG-2 as of any date of
determination.
"Component X-H-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH-1 as of any date of
determination.
"Component X-H-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LH-2 as of any date of
determination.
"Component X-J-1": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ-1 as of any date of
determination.
"Component X-J-2": One of the twenty-eight components of the
Class XC Certificates and one of the twenty-three components of the Class XP
Certificates having a Component Notional Amount equal to the then current REMIC
I Principal Balance of REMIC I Regular Interest LJ-2 as of any date of
determination.
"Component X-K": One of the twenty-eight components of the
Class XC Certificates having a Component Notional Amount equal to the then
current REMIC I Principal Balance of REMIC I Regular Interest LK-1 as of any
date of determination.
20
"Component X-L": One of the twenty-eight components of the
Class XC Certificates having a Component Notional Amount equal to the then
current REMIC I Principal Balance of REMIC I Regular Interest LL as of any date
of determination.
"Component X-M": One of the twenty-eight components of the
Class XC Certificates having a Component Notional Amount equal to the then
current REMIC I Principal Balance of REMIC I Regular Interest LM as of any date
of determination.
"Component X-N": One of the twenty-eight components of the
Class XC Certificates having a Component Notional Amount equal to the then
current REMIC I Principal Balance of REMIC I Regular Interest LN as of any date
of determination.
"Component X-O": One of the twenty-eight components of the
Class XC Certificates having a Component Notional Amount equal to the then
current REMIC I Principal Balance of REMIC I Regular Interest LO as at any date
of determination.
"Component Notional Amount": With respect to each Component
and any date of determination, an amount equal to the then REMIC I Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the
Class of Sequential Pay Certificates, (a) which bears the latest alphabetical
Class designation and (b) the Class Principal Balance of which is (i) greater
than 25% of the Original Class Principal Balance thereof (without considering
any Appraisal Reductions) and (ii) equal to or greater than 1.0% of the sum of
the Original Class Principal Balances of all the Sequential Pay Certificates;
provided, however, that if no Class of Sequential Pay Certificates satisfies
clause (b) above, the Controlling Class shall be the outstanding Class of
Certificates (other than the Residual Certificates or the Class X Certificates)
bearing the latest alphabetical Class designation. With respect to determining
the Controlling Class, the Class A-1, the Class A-2, the Class A-3 and the Class
A-4 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in
Section 3.25.
"Corporate Trust Office": The principal corporate trust office
of the Trustee at which at any particular time its asset-backed securities trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:, Attn: Asset Backed
Securities Trust Services Group - Xxxxxxx Xxxxx Mortgage Trust, Series 2002-MW1.
"Corrected Mortgage Loan": Any Mortgage Loan and, if
applicable, any Companion Loan, that had been a Specially Serviced Mortgage Loan
but has ceased to be a Specially Serviced Mortgage Loan in accordance with the
definition of "Specially Serviced Mortgage Loan".
"Corresponding Certificate": As defined in the Preliminary
Statement with respect to any Corresponding Component or any Corresponding REMIC
I Regular Interest.
21
"Corresponding Component": As defined in the Preliminary
Statement with respect to any Corresponding Certificate or any Corresponding
REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates or
any Component of the Class X Certificates.
"Crossed Loan": As defined in Section 2.03.
"Crossed Group": As defined in Section 2.03.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate
of the Depositor or a Mortgage Loan Seller. If no such custodian has been
appointed or if such custodian has been so appointed, but the Trustee shall have
terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": With respect to any Mortgage Loan or any
Companion Loan, the Due Date for such Mortgage Loan or such Companion Loan in
July 2002.
"Cut-off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-off Date, after application of all unscheduled
payments of principal received on or before such date and the principal
component of all Periodic Payments due on or before such date, whether or not
received.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan, as of any date of determination, the ratio of (x) the annualized Net
Operating Income (before payment of any debt service on such Mortgage Loan)
generated by the related Mortgaged Property during the most recently ended
period of not less than six months and not more than twelve months for which
financial statements, if available (whether or not audited) have been received
by or on behalf of the related Mortgage Loan Seller (prior to the Closing Date)
or the Master Servicer or the Special Servicer (following the Closing Date), to
(y) twelve times the amount of the Periodic Payment in effect for such Mortgage
Loan as of such date of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is
delinquent sixty days or more in respect to a Periodic Payment (not including
the Balloon Payment) or (ii) is delinquent in respect of its Balloon Payment
unless the Master Servicer has, on or prior to the Due Date of such Balloon
Payment, received written evidence from an institutional lender of such lender's
binding commitment to refinance such Mortgage Loan within 60 days after the Due
Date of such Balloon Payment (provided that if such refinancing does not occur
during such time specified in the commitment, the related Mortgage Loan shall
immediately become a Defaulted Mortgage Loan), in either case such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as to which the
Master Servicer or Special Servicer has, by written notice to the related
Mortgagor, accelerated the maturity of the indebtedness evidenced by the related
Mortgage Note.
22
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan,
the United States government obligations required or permitted to be pledged in
lieu of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a
Defeasance Loan on the Mortgage Loan Schedule which permits or requires the
related Mortgagor (or permits the holder of such Mortgage Loan to require the
related Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially
containing the content described in Exhibit O attached hereto, setting forth,
among other things, those Mortgage Loans which, as of the close of business on
the Determination Date immediately preceding the preparation of such report,
were delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property and the status of resolution.
"Depositor": Xxxxxxx Xxxxx Mortgage Investors, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": The eighth day of each calendar month,
or if such eighth day is not a Business Day, the next succeeding Business Day.
"Determination Information": As defined in Section 3.18(b).
"Directly Operate": 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 or lease
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 or any Sub-Servicer on behalf of the Trustee) shall not be
23
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or
REO Loan for purposes of allocating any Yield Maintenance Charge received
thereon or with respect thereto among the respective Classes of the Sequential
Pay Certificates (other than any Excluded Class thereof), an amount equal to the
discount rate stated in the Mortgage Loan documents related to such Mortgage
Loan or REO Loan used in calculating the related Prepayment Premium or Yield
Maintenance Charge; provided, that if a discount rate is not stated thereon, the
"Discount Rate" will be an amount equal to the yield (when compounded monthly)
on the U.S. Treasury issue with a maturity date closest to the maturity date for
such prepaid Mortgage Loan or REO Loan. In the event there are two or more such
U.S. Treasury issues (a) with the same coupon, the issue with the lowest yield
shall apply, and (b) with maturity dates equally close to the maturity date for
the prepaid Mortgage Loan or REO Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Organization": Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates, other than such Person, to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
"Distributable Certificate Interest": With respect to any
Class of Regular Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (other than with respect to the Class X Certificates) (to not less than
zero) by (i) the product of (a) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (b) a fraction, expressed as a
decimal, the numerator of which is the Accrued Certificate Interest in respect
of such Class of Certificates for such Distribution Date, and the denominator of
which is the aggregate Accrued Certificate Interest in respect of all the
Classes of Regular Certificates for such Distribution Date, and (ii) with
respect to each such Class (other than the Class X Certificates), such Class'
share of any Certificate Deferred Interest allocated to such Class in accordance
with Section 4.04(c).
24
"Distribution Account": The segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b) which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1."
"Distribution Date": The fourth Business Day after the related
Determination Date commencing in August 2002.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date or any Companion Loan on or prior to its maturity
date, the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on such Mortgage Loan or Companion Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date or any
Companion Loan after its maturity date, the day of the month set forth in the
related Mortgage Note on which each Periodic Payment on such Mortgage Loan or
Companion Loan had been scheduled to be first due; and (iii) any REO Loan, the
day of the month set forth in the related Mortgage Note on which each Periodic
Payment on the related Mortgage Loan had been scheduled to be first due.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company, and with
respect to deposits held for 30 days or more in such account the (a) long-term
deposit or unsecured debt obligations of which are rated at least (A) "Aa3" by
Moody's (if then rated by Moody's) and (B) "AA-" by S&P (or "A-" provided the
short-term unsecured debt obligations are rated at least "A-1" by S&P) (or, with
respect to any such Rating Agency, such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the applicable Rating Agency), at any
time such funds are on deposit therein, or with respect to deposits held for
less than 30 days in such account the (b) short-term deposits of which are rated
at least "P-1" by Moody's (if then rated by Moody's) and "A-1" by S&P (or, with
respect to any such Rating Agency, such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates) as evidenced in writing by the applicable Rating Agency at any
time such funds are on deposit therein, or (ii) a segregated trust account or
accounts maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority, or the use of such account would not, in and of itself, cause a
qualification, downgrading or withdrawal of the then-current rating assigned to
any Class of Certificates, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as
described in, and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any successor provisions covering the same subject matter in the case
of a Specially Serviced Mortgage Loan
25
as to which the related Mortgaged Property is multifamily property or (ii) the
American Society for Testing and Materials in the case of Specially Serviced
Mortgage Loan as to which the related Mortgaged Property is not multifamily
property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Restricted Certificate": Any Class H, Class J, Class K,
Class L, Class M, Class N or Class O Certificate; provided, that any such
Certificate (a) will cease to be considered an ERISA Restricted Certificate and
(b) will cease to be subject to the transfer restrictions related to ERISA
Restricted Certificates contained in Section 5.02(c) if, as of the date of a
proposed transfer of such Certificate, either (i) it is rated in one of the four
highest generic ratings categories by a Rating Agency or (ii) relevant
provisions of ERISA would permit transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Master Servicer
or the Special Servicer for the account of any Mortgagor for application toward
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay 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, Class F Certificates
and Class G Certificates.
"Exemptions": Department of Labor Prohibited Transaction
Exemption ("PTE") 90-29, PTE 96-22 and Final Authorization Number 97-03E, each
as amended by PTE 2000-58, and as each may be amended from time to time, or any
successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any
successor.
"FHLMC": Xxxxxxx Mac or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan (and, if applicable, any
defaulted Companion Loan) or REO Property (other than a Mortgage Loan or REO
Property, as the case may be, that was purchased by any of the Mortgage Loan
Sellers, pursuant to the Merrill Mortgage Loan Purchase Agreement or the
Wachovia Mortgage Loan Purchase Agreement, as applicable, by the Majority
Subordinate Certificateholder, the Companion Holder, Abbey Mezzanine Lender or
the Special Servicer pursuant to Section 3.18(c), 3.18(e), 3.18(h), 3.18(m) or
3.26(d) or by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01) that there has been a
recovery of all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that the Special Servicer has determined, in accordance with the
Servicing Standard, will be ultimately recoverable.
26
"Fiscal Agent": ABN AMRO Bank N.V., its successor in interest,
or any successor fiscal agent appointed as herein provided.
"FNMA": Federal National Mortgage Association or any
successor.
"Grantor Trust": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which are the Grantor
Trust Assets.
"Grantor Trust Assets": The segregated pool of assets
consisting of any Additional Interest with respect to the ARD Loans after their
respective Anticipated Repayment Dates and amounts held from time to time in the
Additional Interest Account that represent Additional Interest.
"Grantor Trust Provisions": Subpart E of Subchapter J of the
Code.
"Ground Lease": With respect to any Mortgage Loan for which
the Mortgagor has a leasehold interest in the related Mortgaged Property or
space lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including, without limitation, asbestos and asbestos-containing
materials, polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products and urea formaldehyde.
"Historical Liquidation Report": A report substantially
containing the information described in Exhibit Q attached hereto, setting
forth, among other things, as of the close of business on the Determination Date
immediately preceding the preparation of such report, (i) the aggregate amount
of Liquidation Proceeds and expenses relating to each Final Recovery
Determination made, both during the related Collection Period and historically,
and (ii) the amount of Realized Losses occurring during the related Collection
Period, set forth on a Mortgage Loan-by-Mortgage Loan basis.
"Historical Loan Modification Report": A report substantially
containing the information described in Exhibit P attached hereto, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related
Collection Period and (ii) since the Cut-off Date, showing the original and the
revised terms thereof.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary
of Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
27
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor, the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, the Fiscal Agent and any and all Affiliates
thereof, (ii) does not have any direct financial interest in or any material
indirect financial interest in any of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class Representative,
the Trustee, the Fiscal Agent or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Controlling Class Representative, the Special Servicer, the Trustee, the
Fiscal Agent or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee, the Fiscal Agent or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee, the Fiscal Agent or any Affiliate thereof, as the
case may be.
"Independent Appraiser": An Independent professional real
estate appraiser who is a member in good standing of the Appraisal Institute,
and, if the State in which the subject Mortgaged Property is located certifies
or licenses appraisers, certified or licensed in such State, and in each such
case, who has a minimum of five years experience in the subject property type
and market.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of the Code if REMIC I were a real estate investment trust (except
that the ownership test set forth in that section shall be considered to be met
by any Person that owns, directly or indirectly, 35 percent or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Trust Fund,
delivered to the Trustee and the Master Servicer), so long as REMIC I does not
receive or derive any income from such Person and provided that the relationship
between such Person and REMIC I is at arm's length, all within the meaning of
Treasury Regulations Section 1.856-4(b)(5), or any other Person upon receipt by
the Trustee, the Fiscal Agent of an Opinion of Counsel, which shall be at no
expense to the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Trust Fund, to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein specified,
that is otherwise herein contemplated to be taken by an Independent Contractor
will not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
"Insurance Policy": With respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan or
the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance
Policy, to the extent such proceeds are not applied to the restoration of the
related Mortgaged Property, released to the
28
Mortgagor, or any tenants or ground lessors, as the case may be, pursuant to the
terms of the related Mortgage or lease, in accordance with the Servicing
Standard.
"Insured Environmental Event": As defined in Section 3.08(c).
"Insured Event": With respect to a Lease Enhancement Policy,
any occurrence, condition or event that gives rise or with the passage of time
will give rise to a claim under the Lease Enhancement Policy.
"Intercreditor Agreement": With respect to each Loan Pair, the
intercreditor agreement regarding the administration of such Loan Pair and the
allocation of all amounts received by the holders of the notes contributing any
portion thereof.
"Interest Accrual Period": With respect to each Class of
Regular Certificates, the REMIC I Regular Interests and any Distribution Date,
the calendar month immediately preceding the calendar month in which such
Distribution Date occurs. Notwithstanding the foregoing, each Interest Accrual
Period is deemed to consist of 30 days for purposes of calculating interest on
the Regular Certificates and REMIC I Regular Interests.
"Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "Wachovia Bank,
National Association, as Master Servicer for LaSalle Bank National Association,
as Trustee, on behalf of and in trust for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-MW1".
"Interest Reserve Amount": With respect to each Interest
Reserve Loan and each Distribution Date that occurs in February of each year and
in January of each year that is not a leap year, an amount equal to one day's
interest at the related Mortgage Rate (without regard to the second proviso in
the definition thereof) on the related Stated Principal Balance as of the Due
Date in the month in which such Distribution Date occurs (but prior to the
application of any amounts owed on such Due Date), to the extent a Periodic
Payment or P&I Advance is made in respect thereof for such Due Date as of the
related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any Independent Contractor hired by
the Special Servicer, any Holder of a Certificate, any Companion Holder (only as
to the related Companion Loan) or any Affiliate of any such Person.
"Interim Delinquent Loan Status Report": A report
substantially containing the content described in Exhibit T attached hereto,
setting forth those Mortgage Loans which, as of the last day of the calendar
month immediately preceding the preparation of such report, were delinquent.
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"Internet Website": The Internet Websites maintained by the
Trustee and, if applicable, the Master Servicer initially located at
"xxx.xxxxxxxx.xxx" and "xxx.xxxxxxxxxx.xxx", respectively, or such other address
as provided to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan or any
Companion Loan, all amounts received thereon during any Collection Period, other
than Penalty Interest, whether as payments, Insurance Proceeds, Liquidation
Proceeds or otherwise, which represent late collections of the principal and/or
interest portions of a Scheduled Payment (other than a Balloon Payment) or an
Assumed Scheduled Payment in respect of such Mortgage Loan or such Companion
Loan due or deemed due on a Due Date in a previous Collection Period, and not
previously recovered. With respect to any REO Loan, all amounts received in
connection with the related REO Property during any Collection Period, whether
as Insurance Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Scheduled Payment
in respect of the predecessor Mortgage Loan or of an Assumed Scheduled Payment
in respect of such REO Loan due or deemed due on a Due Date in a previous
Collection Period and not previously recovered.
"Lease Enhancement Policy": With respect to Mortgage Loan
number 19 on the Mortgage Loan Schedule, any non-cancelable lease enhancement
insurance policy that insures against certain losses arising out of casualty
and/or condemnation of the related Mortgage Property.
"Lease Enhancement Policy Insurer": With respect to the Lease
Enhancement Policy, Lexington Insurance Company; together with any assignee,
successor or subsequent insurer thereunder.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with respect to such Mortgage Loan; (iii) such
Mortgage Loan is repurchased by a Mortgage Loan Seller pursuant to the Merrill
Mortgage Loan Purchase Agreement or the Wachovia Mortgage Loan Purchase
Agreement, as applicable; (iv) such Mortgage Loan is purchased by the Companion
Holder pursuant to Section 3.26(d); or (v) such Mortgage Loan is purchased by
the Majority Subordinate Certificateholder, the Companion Holder, the Abbey
Mezzanine Lender or the Special Servicer pursuant to Section 3.18(c), 3.18(e),
3.18(h), 3.18(m) or 3.26(d) or by the Master Servicer, the Special Servicer or
the Majority Subordinate Certificateholder pursuant to Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property; (ii) such REO Property is purchased by the Master Servicer or the
Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01; or (iii) such REO Property is purchased by the Companion Holder
pursuant to Section 3.26(d).
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"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Mortgage Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder the Companion Holder, the Abbey Mezzanine
Lender or the Special Servicer pursuant to Section 3.18(c), 3.18(e), 3.18(h),
3.18(m) or 3.26(d); (v) the repurchase of a Mortgage Loan by a Mortgage Loan
Seller, pursuant to the Merrill Mortgage Loan Purchase Agreement or the Wachovia
Mortgage Loan Purchase Agreement, as applicable; (vi) the purchase of a Mortgage
Loan or REO Property by the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder pursuant to Section 9.01; or (vii) the
purchase of any AB Mortgage Loan or REO Property by the related Companion Holder
pursuant to Section 3.26(d).
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as
of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the then current principal amount of such Mortgage Loan,
and the denominator of which is the Appraised Value of the related Mortgaged
Property.
"Lockout Period": With respect to any Mortgage Note that
prohibits the Mortgagor from prepaying such Mortgage Loan until a date specified
in such Mortgage Note, the period from the Closing Date until such specified
date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any Holder which is
an Affiliate of the Depositor or a Mortgage Loan Seller) entitled to greater
than 50% of the Voting Rights allocated to the Controlling Class; provided,
however, that if there is no single Holder of Certificates entitled to greater
than 50% of the Voting Rights allocated to such Class, then the Majority
Subordinate Certificateholder shall be the single Holder of Certificates with
the largest percentage of Voting Rights allocated to such Class. With respect to
determining the Majority Subordinate Certificateholder, the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates and Class A-4
Certificates shall be deemed to be a single Class of Certificates, with such
Voting Rights allocated among the Holders of Certificates of such Classes in
proportion to the respective Certificate Principal Balances of such Certificates
as of such date of determination.
"Master Servicer": Wachovia Bank, National Association, its
successor in interest, or any successor master servicer appointed as herein
provided.
31
"Master Servicing Fee": With respect to each Mortgage Loan,
the Radisson Companion Loan, the TRW Companion Loan and each REO Loan the fee
payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage
Loan the percentage set forth under the column "Master Servicing Fee Rate" on
the Mortgage Loan Schedule (or, in the case of the Radisson Companion Loan,
0.0125% per annum on the Radisson B Note and 0.0000% per annum on the Radisson C
Note, and in the case of the TRW Companion Loan, 0.05% per annum).
"Xxxxxxx Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Xxxxxxx Mortgage Loan
Purchase Agreement.
"Xxxxxxx Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of July 10, 2002, between the
Depositor and MLMLI and relating to the transfer of the Xxxxxxx Mortgage Loans
to the Depositor.
"MLMLI": Xxxxxxx Xxxxx Mortgage Lending, Inc. or its successor
in interest.
"Money Term": With respect to any Mortgage Loan, the maturity
date, Mortgage Rate, Stated Principal Balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a Prepayment
Premium or Yield Maintenance Charge in connection with a Principal Prepayment
(but not any late fees or default interest provisions).
"Moody's": Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such Rating Agency nor any successor remains in existence,
"Moody's" shall be deemed to refer to such other nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee, the Master
Servicer and the Special Servicer, and specific ratings of Moody's herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage,
deed of trust, deed to secure debt or similar instrument that secures the
Mortgage Note and creates a lien on the fee or leasehold interest in the related
Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage
Loan as to which the Mortgage Rate has been reduced through a modification and
any Distribution Date, the amount by which (a) interest accrued at such reduced
rate is less than (b) the amount of interest that would have accrued on such
Mortgage Loan at the Mortgage Rate before such reduction, to the extent such
amount has been added to the outstanding principal balance of such Mortgage
Loan.
"Mortgage File": With respect to any Mortgage Loan,
collectively the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements
32
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order
of LaSalle Bank National Association, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1, or in blank;
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
any and all intervening assignments thereof, in each case with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form
(except for completion of the assignee's name (if the assignment is
delivered in blank)) of (a) the Mortgage, (b) any related Assignment of
Leases (if such item is a document separate from the Mortgage) and (c)
any other recorded document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-MW1, or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-MW1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed by
an authorized representative of the title company or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan
or in favor of any assignee prior to the Trustee (but only to the
extent the Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an effective UCC
Financing Statement and continuation statement in favor of the Mortgage
Loan Seller on record with the applicable public office for UCC
Financing Statements, an original UCC
33
Amendment, in form suitable for filing in favor of LaSalle Bank
National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of
the Mortgagor and any intercreditor agreement relating to mezzanine
debt related to the Mortgagor;
(xi) copies of any loan agreement, escrow agreement, security
agreement, lease enhancement policy or letter of credit relating to a
Mortgage Loan; and
(xii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each mortgage note
related to such of Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) of this definition, shall be deemed to include only such documents to the
extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage
Loan Schedule and from time to time held in the Trust Fund. As used herein, the
term "Mortgage Loan" includes the related Mortgage Note, Mortgage, any Lease
Enhancement Policy and other security documents contained in the related
Mortgage File. As used herein, the term "Mortgage Loan" does not include any
Companion Loan, provided, that a Mortgage Loan that forms part of a Loan Pair
with its Companion Loan shall be subject to the provisions regarding the
servicing and administration of Mortgage Loans as set forth in Section 3.26.
"Mortgage Loan Documents": Each of the documents listed in
items (i), (ii), (iii), (vi), (x), (xi) and (xii) of the definition of "Mortgage
File".
"Mortgage Loan Schedule": The list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of REMIC I, attached
hereto as Exhibit B and in a computer readable format. Such list shall set forth
the following information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, county, state
and zip code) and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
34
(iv) the amount of the Periodic Payment due on the first
Due Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B)
remaining term to stated maturity and (C) the Stated Maturity Date
and, in the case of an ARD Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the
remaining amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground
Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so
the Anticipated Repayment Date and Additional Interest Rate for such
ARD Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is insured by a Lease
Enhancement Policy or environmental policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter
of credit;
(xvii) whether such Mortgage Loan is an Interest Reserve
Loan;
(xviii) whether payments on such Mortgage Loan are made
to a lock-box;
(xix) the amount of any Reserve Funds escrowed in
respect of each Mortgage Loan;
(xx) the number of units or square feet of such property
as reported in the rent roll or mortgage loan schedule;
(xxi) the number of days of any grace period permitted
under such Mortgage Loan;
(xxii) the property type of such property as reported in
the rent roll or mortgage loan schedule;
35
(xxiii) the original principal balance of such Mortgage
Loan; and
(xxiv) the interest accrual basis of such Mortgage Loan.
"Mortgage Loan Seller": MLMLI, Wachovia or their respective
successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or a Companion Loan, together
with any rider, addendum or amendment thereto, or any renewal, substitution or
replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or
prior to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding, provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months,
then, solely for purposes of calculating the Pass-Through Rates, the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a related Due Date
will be the annualized rate at which interest would have to accrue in respect of
such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, however, that with respect to each Interest Reserve Loan, the Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year will be determined exclusive
of the Interest Reserve Amounts for such months, and (B) preceding the Due Date
in March will be determined inclusive of the Interest Reserve Amounts for the
immediately preceding February and, if applicable, January; provided, further,
that, if the Mortgage Rate of the related Mortgage Loan has been modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20, solely for purposes of calculating
the Pass-Through Rate, the Mortgage Rate for such Mortgage Loan shall be
calculated without regard to such event.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the Mortgage
Note.
36
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Certificate Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage Loans.
"Net Investment Earnings": With respect to the Certificate
Account, the Interest Reserve Account, any Servicing Account, any Reserve
Account or the REO Account (if any) for any Collection Period, the amount, if
any, by which the aggregate of all interest and other income realized during
such Collection Period on funds held in such account, exceeds the aggregate of
all losses, if any, incurred during such Collection Period in connection with
the investment of such funds in accordance with Section 3.06. "Net Investment
Loss": With respect to the Certificate Account, the Interest Reserve Account,
any Servicing Account, any Reserve Account or the REO Account (if any) for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such account in accordance with Section 3.06, exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any
REO Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable Master
Servicing Fee Rate.
"Net Operating Income or NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property entered into at the
direction of the Special Servicer on behalf of REMIC I, including any lease
renewed, modified or extended on behalf of REMIC I if REMIC I has the right to
renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer, with respect to each Specially Serviced Mortgage Loan and REO Loan and
by the Master Servicer with respect to each other Mortgage Loan or, if
applicable, each Loan Pair, substantially containing the content described in
Exhibit R attached hereto, presenting the computations made in accordance with
the methodology described in Exhibit R to "normalize" the full year net
operating income and debt service coverage numbers used in the other reports
required by this Agreement and in accordance with the most recent CMSA
standards, as such standards may change from time to time.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made
or proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, that, as
determined by the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, in accordance with the Servicing Standard with
37
respect to such P&I Advance will not be ultimately recoverable from Late
Collections, Insurance Proceeds or Liquidation Proceeds, or any other recovery
on or in respect of such Mortgage Loan, Companion Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage Loan, Companion
Loan or REO Loan by the Master Servicer, the Special Servicer, the Trustee or
the Fiscal Agent, as the case may be, that, as determined by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in accordance
with the Servicing Standard, will not be ultimately recoverable from Late
Collections, Insurance Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan, Companion Loan or REO Property.
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class XC, Class XP, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class Z-I, Class
Z-II, Class R-I or Class R-II Certificate.
"Non-United States Person": Any Person other than a United
States Person.
"Officers' Certificate": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case may be, or
by a Responsible Officer of the Trustee.
"Operating Advisor": With respect to the Wachovia AB Mortgage
Loans, the advisor appointed by the Companion Holders pursuant to Section 6.11.
"Operating Statement Analysis": With respect to each Mortgage
Loan and REO Mortgaged Property, a report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the Master
Servicer with respect to each other Mortgage Loan or, if applicable, each Loan
Pair, substantially containing the content described in Exhibit S attached
hereto and conforming to the most recent CMSA standard, as such standards may
change from time to time.
"Opinion of Counsel": A written opinion of counsel (which
counsel may be a salaried counsel for the Depositor, the Master Servicer or the
Special Servicer) acceptable to and delivered to the Trustee or the Master
Servicer, as the case may be, except that any opinion of counsel relating to (a)
the qualification of REMIC I or REMIC II as a REMIC; (b) the qualification of
the Grantor Trust as a grantor trust; (c) compliance with REMIC Provisions or
(d) the resignation of the Master Servicer or Special Servicer pursuant to
Section 6.04 must be an opinion of counsel who is in fact Independent of the
Master Servicer, the Special Servicer or the Depositor, as applicable.
"Option Holder": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class
of Regular Certificates (other than the Class X Certificates), the initial Class
Principal Balance thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
38
"Original Class XC Notional Amount": $1,082,600,757.
"Original Class XP Notional Amount": $993,671,000.
"Original Notional Amount": The Original Class XC Notional
Amount or the Original Class XP Notional Amount, as the context requires.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
3.8890% per annum;
(ii) the Class A-2 Certificates for any Distribution Date,
4.9290% per annum;
(iii) the Class A-3 Certificates for any Distribution Date,
5.4030% per annum;
(iv) the Class A-4 Certificates for any Distribution Date,
5.6190% per annum;
(v) the Class B Certificates for any Distribution Date,
5.7470% per annum;
(vi) the Class C Certificates for any Distribution Date,
5.8450% per annum;
(vii) the Class D Certificates for any Distribution Date,
5.9040% per annum;
(viii) the Class E Certificates for any Distribution Date,
6.2190% per annum;
(ix) the Class F Certificates for any Distribution Date,
6.3170% per annum;
(x) the Class G Certificates for any Distribution Date,
6.5700% per annum;
(xi) the Class H Certificates for any Distribution Date,
5.6950% per annum;
(xii) the Class J Certificates for any Distribution Date,
5.6950% per annum;
(xiii) the Class K Certificates for any Distribution Date,
5.6950% per annum;
(xiv) the Class L Certificates for any Distribution Date,
5.6950% per annum;
(xv) the Class M Certificates for any Distribution Date,
5.6950% per annum;
(xvi) the Class N Certificates for any Distribution Date,
5.6950% per annum;
(xvii) the Class O Certificates for any Distribution Date,
5.6950% per annum;
39
(xviii) the Class XC Certificates, for the initial
Distribution Date, 0.2416% per annum, and for any
subsequent Distribution Date, the weighted average of
Class XC Strip Rates for the Components for such
Distribution Date (weighted on the basis of the
respective Component Notional Amounts of such
Components outstanding immediately prior to such
Distribution Date); and
(xix) the Class XP Certificates for the initial
Distribution Date, 1.9157% per annum, and for any
subsequent Distribution Date, the weighted average of
the Class XP Strip Rates for the respective Class XP
Components for such Distribution Date (weighted on
the basis of the respective Component Notional
Amounts of such Components outstanding immediately
prior to such Distribution Date).
"P&I Advance": As to any Mortgage Loan or REO Loan, any
advance made by the Master Servicer, the Trustee or the Fiscal Agent pursuant to
Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding
each Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan or
Companion Loan (or successor REO Loan), any amounts collected thereon, other
than late payment charges, Additional Interest, Prepayment Premiums or Yield
Maintenance Charges, that represent penalty interest (arising out of a default)
in excess of interest on the Stated Principal Balance of such Mortgage Loan or
Companion Loan (or successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular
Certificate, the portion of the relevant Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such Certificate
as of the Closing Date, as specified on the face thereof, and the denominator of
which is the Original Class Principal Balance or Original Notional Amount, as
the case may be, of the relevant Class. With respect to a Residual Certificate,
Class Z-I Certificate or Class Z-II Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan or
Companion Loan as of any Due Date, the scheduled payment of principal and/or
interest on such Mortgage Loan or Companion Loan (exclusive of Additional
Interest), including any Balloon Payment, that is actually payable by the
related Mortgagor from time to time under the terms of the related Mortgage Note
(as such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee or
one of its Affiliates if otherwise qualifying hereunder):
40
(i) direct obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by, the
United States or any agency or instrumentality thereof (having
original maturities of not more than 365 days), provided such
obligations are backed by the full faith and credit of the United
States. Such obligations must be limited to those instruments that
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change or be liquidated prior to
maturity. Interest may either be fixed or variable. In addition,
such obligations may not have a rating from S&P with an "r"
highlighter. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(ii) repurchase obligations with respect to any security
described in clause (i) above (having original maturities of not
more than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such obligations
are rated in the highest rating categories of each of S&P and
Moody's or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. In
addition, it may not have a rating from S&P with an "r" highlighter
and its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may
either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state thereof
(having original maturities of not more than 365 days), the short
term obligations of which are rated in the highest rating categories
of each of S&P and Xxxxx'x or such lower rating as will not result
in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, its terms should have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. In addition, it may not have a rating from S&P with an "r"
highlighter and its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index plus
a single fixed spread (if any), and move proportionately with that
index;
(iv) commercial paper (having original maturities of not
more than 365 days) of any corporation incorporated under the laws
of the United States or any state thereof (or if not so
incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to any
withholding imposed by any non-United States jurisdiction) which is
rated in the highest rating category of each of S&P and Xxxxx'x or
such lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. The commercial paper by
its terms must have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. In addition, it may not
have a rating from S&P with an "r" highlighter and its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must
41
be tied to a single interest rate index plus a single fixed spread
(if any), and move proportionately with that index;
(v) units of money market funds that maintain a constant
asset value and which are rated in the highest applicable rating
category by Xxxxx'x and which are rated "AAAm" or "AAAm G" by S&P
(or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies) and
which seeks to maintain a constant net asset value. In addition, it
may not have a rating from S&P with an "r" highlighter and its terms
must have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each
Rating Agency, evidence of which acceptability shall be provided in
writing by each Rating Agency to the Master Servicer, the Special
Servicer and the Trustee; provided, however, in no event shall such
other obligation or security be rated less than "Aa2/AA" or "A3/A-1"
or "Aa3/P-1" by Xxxxx'x or S&P, respectively;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual
Certificate other than a Disqualified Organization, a Plan or a Non-United
States Person.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year
of REMIC I or REMIC II, the Holder of Certificates holding the largest
Percentage Interest of the related Class of Residual Certificates.
"Policy Termination Event": With respect to any Lease
Enhancement Policy any abatement, rescission, cancellation, termination,
contest, legal process, arbitration or disavowal of liability thereunder by the
related insurer.
"Prepayment Assumption": For purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part during any
Collection Period, which Principal
42
Prepayment was applied to such Mortgage Loan following such Mortgage Loan's Due
Date in such Collection Period, the amount of interest (net of the related
Master Servicing Fee and if applicable, the Additional Interest) accrued on the
amount of such Principal Prepayment during the period from and after such Due
Date and ending on the date such Principal Prepayment was applied to such
Mortgage Loan, to the extent collected (exclusive of any related Prepayment
Premium or Yield Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a voluntary Principal Prepayment in full or in part
during any Collection Period, which Principal Prepayment was applied to such
Mortgage Loan prior to such Mortgage Loan's Due Date in such Collection Period,
the amount of interest, to the extent not collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than
a Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change from time to
time. If The Wall Street Journal ceases to publish the "prime rate", then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) and any Assumed Scheduled Payments due or
deemed due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, to the extent not previously
received or advanced with respect to a Distribution Date prior to the related
Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related
Stated Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (other than a Principal Prepayment) made by or on
behalf of the related Mortgagor during the related Collection Period (including
any Balloon Payment), net of any portion of such payment that
43
represents a recovery of the principal portion of any Scheduled Payment (other
than a Balloon Payment) due, or the principal portion of any Assumed Scheduled
Payment deemed due, in respect of such Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered;
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise included in clause
(a), (b) or (c) above, payments that were received on the Mortgage Loans during
the related Collection Period and that were identified and applied by the Master
Servicer and/or Special Servicer as recoveries of principal of such Mortgage
Loans, in each case net of any portion of such amounts that represents a
recovery of the principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Scheduled Payment
deemed due, in respect of the related Mortgage Loan on a Due Date during or
prior to the related Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in respect of
the related REO Loans for their respective Due Dates occurring during the
related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were received
during the related Collection Period on such REO Properties and that were
identified and applied by the Master Servicer and/or Special Servicer as
recoveries of principal of the related REO Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion of
any Scheduled Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of the related
REO Loan or the predecessor Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount for
the immediately preceding Distribution Date, over the aggregate distributions of
principal made on the Sequential Pay Certificates on such immediately preceding
Distribution Date pursuant to Section 4.01
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan or Companion Loan that is received in advance of
its scheduled Due Date; and provided that it shall not include a payment of
principal that is accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Principal Recovery Fee": With respect to each Specially
Serviced Mortgage Loan and REO Loan, the fee payable to the Special Servicer out
of certain related recoveries pursuant to the third paragraph of Section
3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set
forth in the third paragraph of Section 3.11(c), 1.00%.
44
"Privileged Person": Any Certificateholder, Certificate Owner,
any Person identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, the Companion Holder (only with respect to its
Companion Loan), any Underwriter or any party hereto; provided that no
Certificate Owner or prospective transferee of a Certificate or interest therein
shall be considered a "Privileged Person" or be entitled to a password or
restricted access as contemplated by Section 3.15 unless such Person has
delivered to the Trustee or the Master Servicer, as applicable, a certification
in the form of Exhibit V-1 or Exhibit V-2, as applicable.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated June 18, 2002, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement dated
June 26, 2002 of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
"PTCE 95-60": As defined in Section 5.02(c).
"Purchase Option": As defined in Section 3.18(c)
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan (or REO
Loan) to be purchased by a Mortgage Loan Seller pursuant to the Merrill Mortgage
Loan Purchase Agreement or the Wachovia Mortgage Loan Purchase Agreement, as
applicable, by the Majority Subordinate Certificateholder, the Companion Holder
or the Special Servicer as described in Section 3.18(c), 3.18(e), 3.18(h) or
3.26(d), the Abbey Mezzanine Lender pursuant to Section 3.18(m), or by the
Depositor, the Special Servicer, the Majority Subordinate Certificateholder or
the Master Servicer pursuant to Section 9.01, a cash price equal to the
outstanding principal balance of such Mortgage Loan (or REO Loan) as of the date
of purchase, together with (a) all accrued and unpaid interest on such Mortgage
Loan (or REO Loan) at the related Mortgage Rate to but not including the Due
Date in the Collection Period of purchase plus any accrued interest on P&I
Advances made with respect to such Mortgage Loan, (b) all related and
unreimbursed Servicing Advances plus any accrued and unpaid interest thereon,
(c) any reasonable costs and expenses, including, but not limited to, the cost
of any enforcement action, incurred by the Master Servicer, the Special Servicer
or the Trust Fund in connection with any such purchase by a Mortgage Loan Seller
(to the extent not included in clause (b) above), (d) any other Additional Trust
Fund Expenses in respect of such Mortgage Loan (including any Additional Trust
Fund Expenses previously reimbursed or paid by the Trust Fund but not so
reimbursed by the related Mortgagor or from Insurance Proceeds or condemnation
proceeds); provided, that the Purchase Price shall not be reduced by any
outstanding P&I Advance, and (e) with respect to the Abbey Mezzanine Lender's
purchase of any Mortgage Loan pursuant to Section 3.18(m), if the Abbey
Mezzanine Lender does not exercise its right to purchase the applicable Mortgage
Loan within the 15 day time period pursuant to the Abbey Intercreditor
Agreement, the Abbey Mezzanine Lender will be required to pay an amount equal to
1% of the purchase price of the applicable
45
Mortgage Loan to the Special Servicer as a Principal Recovery Fee (and such
Principal Recovery Fee will not be an expense of the Trust Fund); provided, that
the Purchase Price shall not be reduced by any outstanding P& I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Insurer": An insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A2" by
Xxxxx'x and "A" by S&P (or the obligations of which are guaranteed or backed by
a company having such a claims paying ability) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), an insurance company that has a claims
paying ability rated no lower than two rating categories (without regard to
pluses or minuses or numerical qualifications) below the rating assigned to the
then highest rated outstanding Certificate (or, with respect to the required
Xxxxx'x rating, if not rated by Xxxxx'x, then at least "A" by two other
nationally recognized statistical rating organizations (which may include S&P))
but in no event lower than "A" by S&P and "A2" by Xxxxx'x (or, if not rated by
Xxxxx'x, then at least "A" by two other nationally recognized statistical rating
organizations (which may include S&P)), or, in the case of clauses (i) and (ii),
such other rating as each Rating Agency shall have confirmed in writing will not
cause such Rating Agency to downgrade, qualify or withdraw the then-current
rating assigned to any of the Certificates that are then currently being rated
by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which
must, on the date of substitution: (i) have an outstanding Stated Principal
Balance, after application of all scheduled payments of principal and interest
due during or prior to the month of substitution, not in excess of the Stated
Principal Balance of the deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs; (ii) have a Mortgage Rate
not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the
same Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on the basis of a 360-day year
consisting of twelve 30-day months); (v) have a remaining term to stated
maturity not greater than, and not more than two years less than, the remaining
term to stated maturity of the deleted Mortgage Loan; (vi) have an original
Loan-to-Value Ratio not higher than that of the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than the then current Loan-to-Value Ratio
of the deleted Mortgage Loan; (vii) comply as of the date of substitution with
all of the representations and warranties set forth in the Merrill Mortgage Loan
Purchase Agreement or the Wachovia Mortgage Loan Purchase Agreement, as
applicable; (viii) have an Environmental Assessment that indicates no adverse
environmental conditions and an engineering report that indicates no adverse
physical condition with respect to the related Mortgaged Property and which will
be delivered as a part of the related Mortgage File; (ix) have an original Debt
Service Coverage Ratio of not less than the original Debt Service Coverage Ratio
of the deleted Mortgage Loan and a current Debt Service Coverage Ratio of not
less than the current Debt Service Coverage Ratio of the deleted Mortgage Loan;
(x) be determined by an Opinion of Counsel (at the applicable Mortgage Loan
Seller's expense) to be a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; (xi) not have a maturity date after the date two
years prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee has received prior confirmation in
writing by each Rating Agency that such substitution will not
46
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates then rated by the Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the Mortgage
Loan Seller); (xiii) have a date of origination that is not more than 12 months
prior to the date of substitution; (xiv) have been approved by the Controlling
Class Representative (or, if there is no Controlling Class Representative then
serving, by the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), which approval may not be
unreasonably withheld or delayed; and (xv) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be received by the terms of this Agreement, as determined by an Opinion of
Counsel (at the applicable Mortgage Loan Seller's expense). In the event that
one or more mortgage loans are substituted for one or more deleted Mortgage
Loans, then the amounts described in clause (i) shall be determined on the basis
of aggregate principal balances and the rates described in clause (ii) above
(provided that the lowest Net Mortgage Rate shall not be lower than the lowest
Pass-Through Rate of any Class of Sequential Pay Certificates outstanding) and
the remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis. When a Qualified Substitute Mortgage
Loan is substituted for a deleted Mortgage Loan, the applicable Mortgage Loan
Seller shall certify that the Mortgage Loan meets all of the requirements of the
above definition and shall send such certification to the Trustee.
"Radisson B Note": The senior Mortgage Note evidencing
indebtedness under the Radisson Companion Loan.
"Radisson C Note": The junior Mortgage Note evidencing
indebtedness under the Radisson Companion Loan.
"Radisson Companion Loan": The junior companion loan which
relates to the Radisson Mortgage Loan.
"Radisson Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 36, originated by Wachovia Bank, National
Association.
"Rated Final Distribution Date": The Distribution Date in July
2034, the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-off Date, has the
longest amortization term.
"Rating Agency": Each of Xxxxx'x and S&P.
"Realized Loss": With respect to: (1) each defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to (a)
the unpaid principal balance of such Mortgage Loan or REO Loan, as the case may
be, as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in
47
the Collection Period in which the Final Recovery Determination was made
(exclusive of any portion thereof that constitutes Penalty Interest in excess of
the Mortgage Rate, Additional Interest, Prepayment Premiums or Yield Maintenance
Charges), plus (c) any related unreimbursed Servicing Advances and unpaid
liquidation expenses as of the commencement of the Collection Period in which
the Final Recovery Determination was made, together with any new related
Servicing Advances made during such Collection Period, minus (d) all payments
and proceeds, if any, received in respect of such Mortgage Loan or the REO
Property that relates to such REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
defaulted Mortgage Loan as to which any portion of the principal or previously
accrued interest (other than Additional Interest and Penalty Interest) payable
thereunder was canceled in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20, the amount of such principal and/or interest so canceled; and (3) each
Mortgage Loan as to which the Mortgage Rate thereon has been permanently reduced
and not recaptured for any period in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of the consequent reduction in the interest
portion of each successive Periodic Payment due thereon (each such Realized Loss
shall be deemed to have been incurred on the Due Date for each affected Periodic
Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C or Class D Certificate.
"Regular Certificate": Any REMIC II Certificate other than a
Class R-II Certificate.
"Reimbursement Rate": The rate per annum applicable to the
accrual of interest on Servicing Advances in accordance with Section 3.03(d) and
on P&I Advances in accordance with Section 4.03(d), which rate per annum is
equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate
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REMIC election is to be made and, consisting of: (i) all of the Mortgage Loans
as from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received after the Closing Date (excluding all
Additional Interest on such Mortgage Loans), together with all documents
included in the related Mortgage Files and any related Escrow Payments and
Reserve Funds; (ii) all amounts held from time to time in the Certificate
Account, the Interest Reserve Account, any REO Account and, to the extent
related to REMIC I, the Distribution Account; (iii) any REO Property acquired in
respect of such a Mortgage Loan; (iv) the rights of the Depositor under Sections
2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of each of the Merrill Mortgage Loan
Purchase Agreement and the Wachovia Mortgage Loan Purchase Agreement with
respect to such Mortgage Loans; and (v) the rights of the mortgagee under all
Insurance Policies with respect to such Mortgage Loans, in each case exclusive
of the interest of the holder of a Companion Loan therein.
"REMIC I Principal Balance": The principal amount of any REMIC
I Regular Interest outstanding as of any date of determination. As of the
Closing Date, the initial REMIC I Principal Balance of each REMIC I Regular
Interest (other than REMIC I Regular Interest XX-0-0, XX-0-0, XX-0-0, XX-0-0,
XX-0-0, XX-0-0, XX-0-0, XX-0-0, XX-0-0, XX-0-0, XX-0-0, LF-1, LF-2, XX-0, XX-0,
XX-0, XX-0, XX-0 and LJ-2) shall equal the Original Class Principal Balance as
set forth in the Preliminary Statement hereto. As of the Closing Date, the REMIC
I Principal Balance of REMIC I Regular Interests LA-1-1 and LA-1-2 shall be
$40,209,000 and $27,708,000 respectively, the REMIC I Principal Balance of REMIC
I Regular Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be $14,931,000, $41,500,000
and $41,426,000 respectively, the REMIC I Principal Balance of REMIC I Regular
Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be $5,974,000, $94,000,000 and
$21,000,000 respectively, the REMIC I Principal Balance of REMIC I Regular
Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be $30,133,000, $45,900,000 and
$483,000,000 respectively, the REMIC I Principal Balance of REMIC I Regular
Interests LF-1 and LF-2 shall be $8,318,000 and $9,274,000 respectively, the
REMIC I Principal Balance of REMIC I Regular Interests LG-1 and LG-2 shall be
$11,593,000 and $6,000,000 respectively, the REMIC I Principal Balance of REMIC
I Regular Interests LH-1 and LH-2 shall be $14,945,000 and $4,000,000
respectively, the REMIC I Principal Balance of REMIC I Regular Interests LJ-1
and LJ-2 shall be $13,039,000 and $3,200,000 respectively. On each Distribution
Date, the REMIC I Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
in respect of such REMIC I Regular Interest on such Distribution Date pursuant
to Section 4.01(h), and shall be further permanently reduced on such
Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b).
"REMIC I Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, the Weighted Average Net Mortgage Rate.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests and all amounts held from time to time, to the
extent related to REMIC II, in
49
the Distribution Account conveyed in trust to the Trustee for the benefit of
REMIC II, as holder of the REMIC I Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.08, with respect to which a
separate REMIC election is to be made.
"REMIC II Certificate": Any 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, Class O, Class XC, Class XP or Class R-II
Certificate.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled Lend Lease
Asset Management, L.P., as Special Servicer, in trust for registered holders of
Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1."
"REO Acquisition": The acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18(h).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of REMIC I
and deemed to provide for Periodic Payments of principal and/or interest equal
to its Assumed Scheduled Payment and otherwise to have the same terms and
conditions as its predecessor Mortgage Loan (such terms and conditions to be
applied without regard to the default on such predecessor Mortgage Loan and the
acquisition of the related REO Property as part of the Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid principal balance and Stated
Principal Balance equal to the unpaid principal balance and Stated Principal
Balance, respectively, of its predecessor Mortgage Loan (or, if applicable,
Companion Loan) as of the date of the related REO Acquisition. All Scheduled
Payments (other than a Balloon Payment), Assumed Scheduled Payments (in the case
of a Balloon Mortgage Loan delinquent in respect of its Balloon Payment) and
other amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Loan. Collections
in respect of each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent for the payment of, the costs of operating,
managing, selling, leasing and maintaining the related REO Property or for the
reimbursement of the Master Servicer, the Trustee or the Fiscal Agent for other
related Servicing Advances as provided in this Agreement) shall be treated:
first, as a recovery of accrued and unpaid interest on such REO Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of receipt (exclusive of any portion thereof that constitutes Additional
Interest); second, as a
50
recovery of principal of such REO Loan to the extent of its entire unpaid
principal balance; and third, in accordance with the normal servicing practices
of the Master Servicer, as a recovery of any other amounts due and owing in
respect of such REO Loan, including, without limitation, (i) Yield Maintenance
Charges, Prepayment Premiums and Penalty Interest and (ii) Additional Interest
and other amounts, in that order. Notwithstanding the foregoing, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent in respect of the predecessor Mortgage Loan as of
the date of the related REO Acquisition, including, without limitation, any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer, the
Trustee or the Fiscal Agent in respect of such Servicing Advances and P&I
Advances in accordance with Sections 3.03(d) and 4.03(d), shall continue to be
payable or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as the case may be, in respect of an REO Loan
pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in
the name of the Trust Fund for the benefit of the Certificateholders (subject to
the related Intercreditor Agreement with respect to the Mortgaged Property
securing each Loan Pair) through foreclosure, acceptance of a deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially in the form of and
containing the information described in Exhibit M attached hereto, or in such
other form for the presentation of such information as may be recommended by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "REO Status Report" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Special Servicer and setting forth with
respect to each REO Property that was included in the Trust Fund as of the close
of business on the Determination Date immediately preceding the preparation of
such report, among other things, (i) the acquisition date of such REO Property,
(ii) the amount of income collected with respect to such REO Property (net of
related expenses) and other amounts, if any, received on such REO Property
during the related Collection Period and (iii) the value of the REO Property
based on the most recent appraisal or other valuation thereof available to the
Special Servicer as of such Determination Date (including any prepared
internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing
Officer, as applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto or of the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 CFR ss.225.62 and conducted in accordance with the standards of the
Appraisal Institute.
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"Required Appraisal Date": With respect to any Required
Appraisal Mortgage Loan, the earliest date on which any of the items specified
in clauses (i) through (vi) of the first paragraph of the definition of Required
Appraisal Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i)
that is sixty (60) days or more delinquent in respect of any Periodic Payments,
(ii) that becomes an REO Loan, (iii) that has been modified by the Special
Servicer to reduce the amount of any Periodic Payment (other than a Balloon
Payment), (iv) with respect to which a receiver is appointed and continues in
such capacity in respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor declares bankruptcy or with respect to which the related
Mortgagor is subject to a bankruptcy proceeding or (vi) with respect to which
any Balloon Payment on such Mortgage Loan has not been paid by its scheduled
maturity date unless the Master Servicer has, on or prior to the due date of
such Balloon Payment, received written evidence from an institutional lender of
such lender's binding commitment to refinance such Mortgage Loan within 60 days
after the due date of such Balloon Payment; provided, however, that a Required
Appraisal Mortgage Loan will cease to be a Required Appraisal Mortgage Loan;
(a) with respect to the circumstances described in clauses (i)
and (iii) above, when the related Mortgagor has made three consecutive full and
timely Periodic Payments under the terms of such Mortgage Loan (as such terms
may be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20); and
(b) with respect to the circumstances described in clauses
(iv), (v) and (vi) above, when such circumstances cease to exist in the good
faith reasonable judgment of the Special Servicer and in accordance with the
Servicing Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (iv) and (v), no later than the entry of an
order or decree dismissing such proceeding, and with respect to the
circumstances described in clause (vi) above, no later than the date that the
Special Servicer agrees to an extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i) through (vi)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the
Appraised Value (net of any prior liens and estimated liquidation expenses) of
the Mortgaged Property related to the subject Required Appraisal Mortgage Loan
as determined by a Required Appraisal or letter update or internal valuation, if
applicable, and provided further that for purposes of determining any Appraisal
Reduction Amount in respect of such Required Appraisal Mortgage Loan, such
Appraisal Reduction Amount shall be amended annually to reflect the Required
Appraisal Value determined pursuant to any Required Appraisal or letter update
or internal valuation, if applicable, of a Required Appraisal conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
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"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any
amounts delivered by the related Mortgagor to be held in escrow by or on behalf
of the mortgagee representing reserves for environmental remediation, repairs,
capital improvements, tenant improvements and/or leasing commissions with
respect to the related Mortgaged Property.
"Residual Certificate": A Class R-I Certificate or Class R-II
Certificate.
"Responsible Officer": When used with respect to (i) the
initial Trustee any officer in the Asset Backed Securities Trust Services Group
of the Corporate Trust Department of the initial Trustee and (ii) any successor
Trustee, any officer or assistant officer in the Corporate Trust Department of
the Trustee, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the Trustee
because of such officer's knowledge of and familiarity with the particular
subject.
"Restricted Servicer Reports": Each of the Watch List,
Operating Statement Analysis, NOI Adjustment Worksheet and Comparative Financial
Status Report.
"S&P": Standard and Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc., or its successor in interest. If neither such
Rating Agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of S&P herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Scheduled Payment": With respect to any Mortgage Loan, for
any Due Date following the Cut-off Date as of which it is outstanding, the
scheduled Periodic Payment of principal and interest (other than Additional
Interest) on such Mortgage Loan that is or would be, as the case may be, payable
by the related Mortgagor on such Due Date under the terms of the related
Mortgage Note as in effect on the Closing Date, without regard to any subsequent
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 or acceleration of principal by reason of default, and
assuming that each prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-4, Class XC or Class XP Certificate.
"Sequential Pay Certificates": Any 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 or Class O Certificate.
53
"Servicer Fee Amount": With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal Balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period and (b) the servicing fee rate specified in the
related Sub-Servicing Agreement for such Mortgage Loan. With respect to the
Master Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan (a) the Stated Principal Balance
of such Mortgage Loan as of the end of the immediately preceding Collection
Period and (b) the difference between the Master Servicing Fee Rate for such
Mortgage Loan over the servicing fee rate (if any) applicable to such Mortgage
Loan as specified in any Sub-Servicing Agreement related to such Mortgage Loan.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by or on behalf of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in connection
with the servicing of a Mortgage Loan or a Companion Loan or in connection with
the administration of any REO Property, including, but not limited to, the cost
of (a) compliance with the obligations of the Master Servicer and the Special
Servicer, if any, set forth in Section 3.02, (b) (i) real estate taxes,
assessments, penalties and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies in each instance if and to
the extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis, (c) the preservation, insurance, restoration,
protection and management of a Mortgaged Property, including the cost of any
"forced placed" insurance policy purchased by the Master Servicer to the extent
such cost is allocable to a particular Mortgaged Property that the Master
Servicer or the Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (d) obtaining any Insurance Proceeds or any Liquidation
Proceeds of the nature described in clauses (i)-(v) of the definition of
"Liquidation Proceeds," (e) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including, without limitation, foreclosures, (f) any
Required Appraisal or other appraisal expressly required or permitted to be
obtained hereunder, (g) the operation, management, maintenance and liquidation
of any REO Property, including, without limitation, appraisals and compliance
with Section 3.16(a) (to the extent not covered by available funds in the REO
Account) and Section 3.20(h) (to the extent not paid by the related Mortgagor)
and (h) compliance with the obligations of the Master Servicer or the Trustee
set forth in Section 2.03(a) or (b). Notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master Servicer
or the Special Servicer, such as costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses or costs and expenses incurred by any such
party in connection with its purchase of a Mortgage Loan or REO Property, or
costs or expenses expressly required to be borne by the Master Servicer or
Special Servicer without reimbursement pursuant to the terms of this Agreement.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
54
"Servicing File": Any documents, certificates, opinions and
reports (other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to the
origination and servicing of any Mortgage Loan or which are reasonably required
for the ongoing administration of the Mortgage Loan, including appraisals,
surveys, engineering reports, environmental reports, financial statements,
leases, rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or
the Special Servicer, as applicable, the servicing and administration of the
Mortgage Loans and the Companion Loans for which it is responsible hereunder (a)
in the same manner in which, and with the same care, skill, prudence and
diligence with which, the Master Servicer or the Special Servicer, as the case
may be, generally services and administers similar mortgage loans with similar
borrowers (i) for other third-parties, giving due consideration to customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own loans or (ii) held in its own portfolio, whichever standard
is higher, (b) with a view to the maximization of the recovery on such Mortgage
Loan (and, in the case of an AB Mortgage Loan, the related Companion Loan) on a
net present value basis and the best interests of the Certificateholders and the
Trust Fund (and, in the case of the Loan Pairs, the Certificateholders, the
Trust Fund and the related Companion Holders, as a collective whole, taking into
account that the Companion Loans are subordinate to the related AB Mortgage
Loans to the extent set forth in the related Intercreditor Agreement), and (c)
without regard to (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor, the Depositor, any Mortgage Loan Seller, or any other party to the
transaction; (ii) the ownership of any Certificate or Companion Loan by the
Master Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as the
case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer to make
Advances; (v) the ownership, servicing or management by the Master Servicer or
the Special Servicer or any Affiliate thereof for others of any other mortgage
loans or mortgaged property; (vi) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to repurchase or substitute a Mortgage Loan as
a Mortgage Loan Seller; (vii) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to cure a breach of a representation and
warranty with respect to a Mortgage Loan; and (viii) any debt the Master
Servicer or Special Servicer or any Affiliate of either has extended to any
Mortgagor.
"Servicing Transfer Event": Unless otherwise provided in an
Intercreditor Agreement with respect to an AB Mortgage Loan, with respect to any
Mortgage Loan, the
55
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination.
"Special Servicer": Lend Lease Asset Management, L.P., or any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, the fee designated as such and payable
to the Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Unless otherwise provided
in an Intercreditor Agreement with respect to an AB Mortgage Loan, any Mortgage
Loan as to which any of the following events have occurred:
(a) the related Mortgagor shall have (i) failed to make when
due any Balloon Payment unless the Master Servicer has, on or prior to the due
date of such Balloon Payment, received written evidence from an institutional
lender of such lender's binding commitment to refinance such Mortgage Loan
within 60 days after the due date of such Balloon Payment (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Specially Serviced Mortgage
Loan), or (ii) failed to make when due any Periodic Payment (other than a
Balloon Payment), and such failure has continued unremedied for 60 days; or
(b) the Master Servicer shall have determined, in its good
faith reasonable judgment, based on communications with the related Mortgagor,
that a default in making a Periodic Payment (including a Balloon Payment) is
likely to occur and is likely to remain unremedied for at least 60 days; or
(c) there shall have occurred a default (other than an
Acceptable Insurance Default or as described in clause (a) above) that the
Master Servicer shall have determined, in its good faith and reasonable
judgment, materially impairs the value of the Mortgaged Property as security for
the Mortgage Loan or otherwise materially adversely affects the interests of
Certificateholders and that continues unremedied beyond the applicable grace
period under the terms of the Mortgage Loan (or, if no grace period is
specified, for 60 days, provided, that a default that gives rise to an
acceleration right without any grace period shall be deemed to have a grace
period equal to zero); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law or the
appointment of a conservator or receiver or
56
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the related Mortgagor; provided that if
such decree or order is discharged, dismissed or stayed within 60 days it shall
not be a Specially Serviced Mortgage Loan (and no Special Servicer Fees shall be
payable); or
(e) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided, however, that a Companion Loan shall be deemed to be a Specially
Serviced Mortgage Loan in accordance with Section 3.26(a); provided, further,
however, that a Mortgage Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with respect to the circumstances described in
clause (a) above, when the related Mortgagor has made three
consecutive full and timely Periodic Payments under the terms
of such Mortgage Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20);
(ii) with respect to the circumstances described in
clauses (b), (d), (e) and (f) above, when such circumstances
cease to exist in the good faith reasonable judgment of the
Special Servicer and in accordance with the Servicing
Standard, but, with respect to any bankruptcy or insolvency
proceedings described in clauses (d), (e) and (f), no later
than the entry of an order or decree dismissing such
proceeding;
(iii) with respect to the circumstances described in
clause (c) above, when such default is cured; and
(iv) with respect to the circumstances described in
clause (g) above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause such Mortgage Loan (or, with respect to such
Companion Loan, the related AB Mortgage Loan, or, as the case may be, with
respect to such AB Mortgage Loan, the related Companion Loan) to continue to be
characterized as a Specially Serviced Mortgage Loan and
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provided no additional default is foreseeable in the reasonable good faith
judgment of the Special Servicer.
"Startup Day": With respect to each of REMIC I and REMIC II,
the day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New
York and North Carolina and by any other state or local taxing authorities as
may, by notice to the Trustee, assert jurisdiction over the trust fund or any
portion thereof, or which, according to an Opinion of Counsel addressed to the
Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date specified in the Mortgage Note (as in effect on the Closing Date) on
which the last payment of principal is due and payable under the terms of the
Mortgage Note (as in effect on the Closing Date), without regard to any change
in or modification of such terms in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan,
as of any date of determination, an amount (which amount shall not be less than
zero) equal to (x) the Cut-off Date Balance of such Mortgage Loan (or, in the
case of a Qualified Substitute Mortgage Loan, the unpaid principal balance after
application of all principal payments due on or before the related date of
substitution, whether or not received), plus (y) any Mortgage Deferred Interest
added to the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Collection Period minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date or the related date of
substitution, as the case may be, to the extent received from the
Mortgagor, or advanced by the Master Servicer pursuant to Section 4.03,
and distributed to Certificateholders on or before such date of
determination;
(ii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage Loan after
the Cut-off Date or the related date of substitution, as the case may
be, to the extent distributed to Certificateholders on or before such
date of determination;
(iii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date or the related date of
substitution, as the case may be, to the extent distributed to
Certificateholders on or before such date of determination; and
(iv) any amount of reduction in the outstanding principal
balance of such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Collection Period for the most recent
Distribution Date.
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With respect to any REO Loan, as of any date of determination,
an amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance
made with respect to the predecessor Mortgage Loan on
or after the date of the related REO Acquisition, to
the extent distributed to Certificateholders on or
before such date of determination; and
(ii) the principal portion of all Insurance
Proceeds, Liquidation Proceeds and REO Revenues
received with respect to such REO Loan, to the extent
distributed to Certificateholders on or before such
date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of
the Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to any Companion Loan on any date of
determination, the unpaid principal balance thereof as of such date.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class Z-I, Class Z-II, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a
substitution pursuant to Section 2.03(a) hereof, an amount equal to the excess,
if any, of the Purchase Price of the Mortgage Loan being replaced calculated as
of the date of substitution over the Stated Principal Balance of the related
Qualified Substitute Mortgage Loan as of the date of substitution. In the event
that one or more Qualified Substitute Mortgage Loans are substituted (at the
same time) for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall be determined as provided in the preceding sentence on the basis of
the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being
replaced and the aggregate Stated Principal Balances of the related Qualified
Substitute Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Matters Person": With respect to each of the REMICs
created hereunder, the Person designated as the "tax matters person" of such
REMIC in the manner provided under
59
Treasury Regulations Section 1.860F-4(d) and Temporary Treasury Regulations
Section 301.6231(a)(7)-1T, which Person shall be the applicable Plurality
Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I and REMIC II due to its classification
as a REMIC under the REMIC Provisions, and the federal income tax return to be
filed on behalf of the Grantor Trust due to its classification as a grantor
trust under the Grantor Trust Provisions, together with any and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Threshold Event": As defined in the related Intercreditor
Agreement.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I
and REMIC II, and (ii) the Grantor Trust Assets.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and each REO
Loan for any Distribution Date, an amount equal to one month's interest for the
most recently ended calendar month (calculated on a 30/360 Basis), accrued at
the Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan or
REO Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": 0.0022% per annum.
"TRW Companion Loan": The junior companion loan which relates
to the TRW Mortgage Loan.
"TRW Mortgage Loan": The Mortgage Loan identified on the
Mortgage Loan Schedule as loan number 19, originated by Capital Lease Funding
LLC and acquired by Wachovia Bank, National Association.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
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"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Underwriter": Each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Wachovia Securities, Inc. and Deutsche Bank Securities Inc., or in
each case, its respective successor in interest.
"United States Person": A citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or organized
in, or under the laws of the United States, any State thereof or the District of
Columbia unless in the case of a partnership, Treasury Regulations are adopted
that provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Updated
Collection Report, Delinquent Loan Status Report, Historical Loan Modification
Report, Historical Liquidation Report, Interim Delinquent Loan Status Report and
REO Status Report.
"Updated Collection Report": A report substantially containing
the content described in Exhibit F attached hereto and available each month on
the P&I Advance Date, setting forth each Mortgage Loan or REO Loan with respect
to which the Master Servicer received a Periodic Payment after the Determination
Date and before the P&I Advance Date for the related month.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"Voting Rights": The portion of the voting rights of all of
the Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates. Ninety-six percent (96%) of the Voting
Rights shall be allocated among the Class X-0, Xxxxx X-0, 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 in proportion to the
respective Class Principal Balances of their Certificates; provided that, solely
for the purpose of determining the Voting Rights of the Classes of Sequential
Pay Certificates, the aggregate Appraisal Reduction Amount (determined as set
forth herein) shall be treated as Realized Losses with respect to the
calculation of the Certificate Principal Balances thereof; provided, further,
however, that the aggregate Appraisal Reduction Amount shall not reduce the
Class Principal Balance of any Class for purposes of determining the Controlling
Class, the Controlling Class Representative or the Majority Subordinate
Certificateholder. Four percent (4%) in the aggregate of the Voting Rights shall
be allocated to the Class X Certificates (allocated, pro rata, between the Class
XC and Class XP Certificates based upon their Notional Amounts). The Class Z-I,
Class Z-II and the Residual Certificates shall have no voting rights. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage Interests evidenced
by their respective Certificates. In addition, if the Master Servicer is the
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holder of any Certificate, the Master Servicer, in its capacity as a
Certificateholder, shall have no Voting Rights with respect to matters
concerning compensation affecting the Master Servicer.
"Wachovia": Wachovia Bank, National Association or its
successor in interest.
"Wachovia AB Mortgage Loan": Each of the Burbank Empire Center
Mortgage Loan and the Radisson Mortgage Loan, and, collectively, the "Wachovia
AB Mortgage Loans".
"Wachovia Companion Loan": Each of the Burbank Empire Center
Companion Loan and the Radisson Companion Loan, and, collectively, the "Wachovia
Companion Loans".
"Wachovia Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of July 10, 2002 between the
Depositor and Wachovia and relating to the transfer of the Wachovia Mortgage
Loans to the Depositor.
"Wachovia Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Wachovia Mortgage Loan
Purchase Agreement.
"Watch List": As of each Determination Date a report,
substantially in the form of Exhibit N attached hereto (or such other form for
the presentation of such information as may be recommended by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for below,
is reasonably acceptable to the Master Servicer), identifying each Mortgage Loan
that is not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage
Ratio of less than 1.05x, other than Mortgage Loans whose operations results for
the first year of operations represent less than seven months of operating
history, (ii) that has a Stated Maturity Date occurring in the next ninety days,
(iii) that is delinquent in respect of its real estate taxes, (iv) for which any
outstanding Advance exists and has been outstanding for 30 days or more, (v)
that has been a Specially Serviced Mortgage Loan in the past 90 days, (vi) for
which the Debt Service Coverage Ratio has decreased by more than 10% in the
prior 12 months and is less than 1.40x, (vii) for which any lease relating to
more than 25% of the rentable area of the related Mortgaged Property has
expired, been terminated, is in default or will expire within the next three
months (without being replaced by one or more tenants or leases), (viii) that is
late in making its Periodic Payment three or more times in the preceding twelve
months, (ix) with material deferred maintenance at the related Mortgaged
Property that has not been completed in the timeframe contemplated or (x) that
is 30 or more days delinquent; provided that a Mortgage Loan will not be
identified on the Watch List solely because the related borrower has failed to
deliver operating statements, rent rolls or other financial statements required
to be delivered under the Mortgage Loan documents.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Net
Mortgage Rates applicable to the Mortgage Loans as of the first day of the
related Collection Period, weighted on the basis of their respective Stated
Principal Balances immediately following the preceding Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
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"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the
context requires, on a Mortgage Loan as the result of a Principal Prepayment
thereon, not otherwise due thereon in respect of principal or interest, which
have been calculated (based on Scheduled Payments on such Mortgage Loan) to
compensate the holder for reinvestment losses based on the value of an interest
rate index at or near the time of prepayment. Any other prepayment premiums,
penalties and fees not so calculated will not be considered "Yield Maintenance
Charges." In the event that a Yield Maintenance Charge shall become due for any
particular Mortgage Loan, the Master Servicer shall be required to follow the
terms and provisions contained in the applicable Mortgage Note, provided,
however, in the event the particular Mortgage Note shall not specify the U.S.
Treasuries which shall be used in determining the discount rate or the
reinvestment yield to be applied in such calculation, the Master Servicer shall
be required to use those U.S. Treasuries having maturity dates most closely
approximating the maturity of such Mortgage Loan. Accordingly if either no U.S.
Treasury issue, or more than one U.S. Treasury issue, shall coincide with the
term over which the Yield Maintenance Charge shall be calculated (which
depending on the applicable Mortgage Note is based on the remaining average life
of the Mortgage Loan or the actual term remaining through the Maturity Date),
the Master Servicer shall use the U.S. Treasury whose reinvestment yield is the
lowest, with such yield being based on the bid price for such issue as published
in The Wall Street Journal on the date that is fourteen (14) days prior to the
date that the Yield Maintenance Charge shall become due and payable (or, if such
bid price is not published on that date, the next preceding date on which such
bid price is so published) and converted to a monthly compounded nominal yield.
The monthly compounded nominal yield ("MEY") is derived from the reinvestment
yield or discount rate and shall be defined as MEY = 12X ({(1+"BEY"/2)1/6}-1)
where BEY is defined as the U.S. Treasury Reinvestment Yield which is in decimal
form and not in percentage, and 1/6 is the exponential power to which a portion
of the equation is raised. For example, using a BEY of 5.50%, the MEY = 12 X
({(1+ .055/2)0.16667}-1) where .055 is the decimal version of the percentage
5.5% and 0.16667 is the decimal version of the exponential power. The MEY in the
above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a common law trust consisting of the
Trust Fund, assign, sell, transfer, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the rights of the Depositor under
Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17 and 18 of each of the Merrill
Mortgage Loan Purchase Agreement and the Wachovia Mortgage Loan Purchase
Agreement and (iii) all other assets included or to be included in the Trust
Fund. Such
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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, notwithstanding Section 11.07, is intended by the parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers pursuant to the Merrill
Mortgage Loan Purchase Agreement and the Wachovia Mortgage Loan Purchase
Agreement, as applicable, to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or a Custodian appointed thereby
(with a copy to the Master Servicer and Special Servicer), on or before the
Closing Date, the Mortgage File for each Mortgage Loan so assigned. The Special
Servicer may request the Master Servicer to deliver a copy of the Servicing File
for any Mortgage Loan (other than a Specially Serviced Mortgage Loan) at the
expense of the Special Servicer, provided, however, that the Master Servicer
will provide a copy of each Lease Enhancement Policy to the Special Servicer
without charge within a reasonable period of time following the Closing Date,
such period not to exceed 30 days or within a reasonable time after receipt by
the Master Servicer. None of the Trustee, the Fiscal Agent, any Custodian, the
Master Servicer or the Special Servicer shall be liable for any failure by any
Mortgage Loan Seller or the Depositor to comply with the document delivery
requirements of the Merrill Mortgage Loan Purchase Agreement, the Wachovia
Mortgage Loan Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of the Merrill Mortgage Loan Purchase Agreement or the Wachovia
Mortgage Loan Purchase Agreement, as applicable, and Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (certified by the applicable Mortgage Loan Seller to be a
true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, in good faith, attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi) (if recorded) and (viii) of the definition of
"Mortgage File," with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the Merrill Mortgage Loan Purchase
Agreement or the Wachovia Mortgage Loan Purchase Agreement, as applicable, and
Section 2.01(b) shall be deemed to have been satisfied as to such non-delivered
document or instrument and such non-delivered document or instrument shall be
deemed to have been included in the Mortgage File,
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provided that a photocopy of such non-delivered document or instrument (with
evidence of recording thereon) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller does not deliver in complete and recordable form
any one of the assignments in favor of the Trustee referred to in clause (iv) or
(v) of the definition of "Mortgage File", the applicable Mortgage Loan Seller
may provisionally satisfy the delivery requirements of the related Merrill
Mortgage Loan Purchase Agreement or Wachovia Mortgage Loan Purchase Agreement,
as applicable, and Section 2.01(b) by delivering with respect to such Mortgage
Loan on the Closing Date an omnibus assignment of such Mortgage Loan; provided
that all required original assignments with respect to such Mortgage Loan in
fully complete and recordable form shall be delivered to the Trustee or its
Custodian within 120 days of the Closing Date (or within such longer period as
the Trustee in its discretion may permit).
(d) With respect to the Mortgage Loans the Trustee shall, for
a fee paid to the Trustee by the Depositor on the Closing Date as to each
Mortgage Loan, promptly (and in any event within 90 days following the later of
the Closing Date or the delivery of all assignments and UCC Financing Statements
to the Trustee) cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate and to the extent timely delivered to the Trustee in
final, recordable form, each assignment of Mortgage, assignment of Assignment of
Leases and, to the extent the Trustee has actual knowledge that such documents
are to be recorded, any other recordable documents relating to each such
Mortgage Loan, in favor of the Trustee referred to in clause (iv) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in favor of
the Trustee and so delivered to the Trustee and referred to in clause (viii) of
the definition of "Mortgage File." Each such assignment, UCC-2 and UCC-3 shall
reflect that the recorded original should be returned by the public recording
office to the Trustee or its designee following recording, and each such UCC-2
and UCC-3 assignment shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original, at the expense of the
Depositor. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Trustee shall
direct the related Mortgage Loan Seller pursuant to the Merrill Mortgage Loan
Purchase Agreement, or the Wachovia Mortgage Loan Purchase Agreement, as
applicable, to promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Trustee shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate. On
a monthly basis, the Trustee shall forward to the Master Servicer a copy of each
of the aforementioned recorded assignments following the Trustee's receipt
thereof, to the extent not previously provided.
(e) All documents and records in the Servicing File (except
attorney-client privileged communications, internal correspondence and credit
analysis of the Mortgage Loan Seller) in possession of the Depositor or the
Mortgage Loan Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof (including any original letters of credit), together with all Escrow
Payments and Reserve
65
Accounts in the possession thereof, shall be delivered to the Master Servicer or
such other Person as may be directed by the Master Servicer (at the expense of
the applicable Mortgage Loan Seller) on or before the Closing Date and shall be
held by the Master Servicer on behalf of the Trustee in trust for the benefit of
the Certificateholders; provided, however, the Master Servicer shall have no
responsibility for holding documents created or maintained by the Special
Servicer hereunder and not delivered to the Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each of the
Merrill Mortgage Loan Purchase Agreement and the Wachovia Mortgage Loan Purchase
Agreement, as in full force and effect on the Closing Date.
(g) The Depositor hereby consents to the filing of any
financial statements contemplated by this Agreement without its consent.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement, acknowledges receipt of the Depositor's assignment to it of the
Depositor's right, title and interest in the assets that constitute the Trust
Fund, and further acknowledges receipt by it or a Custodian on its behalf,
subject to the provisos in the definition of "Mortgage File" and the provisions
of Section 2.01 and subject to the further limitations on review provided for in
Section 2.02(b) and the exceptions noted on the schedule of exceptions of (i)
the Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a
fully executed counterpart of each of the Merrill Mortgage Loan Purchase
Agreement and the Wachovia Mortgage Loan Purchase Agreement, all in good faith
and without notice of any adverse claim, and declares that it or a Custodian on
its behalf holds and will hold such documents and the other documents received
by it that constitute portions of the Mortgage Files, and that it holds and will
hold the Mortgage Loans and other assets included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders
and, with respect to any original document in the Mortgage File for any Loan
Pair, any present or future Companion Holder. The Trustee hereby certifies to
each of the Depositor, the Master Servicer, the Special Servicer and each
Mortgage Loan Seller that except as identified in the schedule of exceptions,
which is attached hereto as Exhibit C-1 without regard to the proviso in the
definition of "Mortgage File", each of the original executed Mortgage Notes as
described in clause (i) of the definition of Mortgage File are in its
possession. In addition, within ninety (90) days after the Closing Date (and if
any exceptions are noted, again every 90 days thereafter until the second
anniversary of the Closing Date, and every 180 days thereafter until the fifth
anniversary of the Closing Date, and thereafter upon request by any party
hereto) any Mortgage Loan Seller or the Majority Subordinate Certificateholder,
the Trustee or the Custodian on its behalf will review the Mortgage Files and
certify (in a certificate substantially in the form of Exhibit C-2) to each of
the Depositor, the Master Servicer, the Special Servicer and each Mortgage Loan
Seller (with copies to the Majority Subordinate Certificateholder) that, with
respect to each Mortgage Loan (other than with respect to the Companion Loans)
listed in the Mortgage Loan Schedule, except as specifically identified in the
schedule of exceptions annexed thereto, (i) without regard to the proviso in the
definition of "Mortgage File," all documents specified in clauses (i), (ii),
(iv)(a), (v) and (vii), and to the
66
extent provided in the related Mortgage File and actually known by a Responsible
Officer of the Trustee to be required, clauses (iii), (iv)(b), (iv)(c), (vi),
(viii) and (xi) of the definition of "Mortgage File" are in its possession, (ii)
all documents delivered or caused to be delivered by the applicable Mortgage
Loan Seller constituting the related Mortgage File have been reviewed by it and
appear regular on their face and appear to relate to such Mortgage Loan, (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Mortgage Loan with
respect to the items specified in clauses (v) and (vi)(c) of the definition of
"Mortgage Loan Schedule" is correct and (iv) solely with respect to the
Companion Loans, all documents specified in clause (xii) of the definition of
"Mortgage File" are in its possession. Further, with respect to the documents
described in clause (viii) of the definition of Mortgage File, absent actual
knowledge to the contrary or copies of UCC Financing Statements delivered to the
Trustee as part of the Mortgage File indicating otherwise, the Trustee may
assume, for purposes of the certification delivered in this Section 2.02(a),
that the related Mortgage File should include one state level UCC Financing
Statement filing and one local UCC Financing Statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor). The UCC's to be assigned to the trust, will be delivered on
the new national forms and in recordable form and will be filed in the state of
incorporation as so indicated on the documents provided.
(b) None of the Trustee, the Fiscal Agent, the Master
Servicer, the Special Servicer or any Custodian is under any duty or obligation
to inspect, review or examine any of the documents, instruments, certificates or
other papers relating to the Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, enforceable, in recordable form,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face.
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution
of Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File has not been
properly executed, is missing (beyond the time period required for its delivery
hereunder), contains information that does not conform in any material respect
with the corresponding information set forth in the Mortgage Loan Schedule, or
does not appear to be regular on its face (each, a "Document Defect"), or
discovers or receives notice of a breach of any representation or warranty
relating to any Mortgage Loan set forth in the Merrill Mortgage Loan Purchase
Agreement or the Wachovia Mortgage Loan Purchase Agreement (a "Breach"), the
party discovering such Document Defect or Breach shall give written notice
(which notice, in respect of any obligation of the Trustee to provide notice of
a Document Defect, shall be deemed given by the delivery of the certificate as
required by Section 2.02(a)) to the other parties hereto, to the Majority
Subordinate Certificateholder and to the Rating Agencies of such Document Defect
or Breach. Promptly upon becoming aware of any Document Defect or Breach
(including through such written notice provided by any party hereto or the
Majority Subordinate Certificateholder as provided above), if any party hereto
determines that such Document Defect or Breach materially and adversely affects
the interests of the Certificateholders or the value of the affected Mortgage
Loan such party shall notify the Master Servicer of such determination and
promptly after receipt of such notice, the Master Servicer shall request in
writing (with a copy to the other parties hereto, the
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Majority Subordinate Certificateholder, the Rating Agencies and the Controlling
Class Representative (if different from the Majority Subordinate
Certificateholder)) that the applicable Mortgage Loan Seller, not later than
ninety (90) days from receipt of such written request (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions, not later than ninety (90)
days after any party to this Agreement discovers such Document Defect or Breach)
(i) cure such Document Defect or Breach, as the case may be, in accordance with
Section 3(c) of the Merrill Mortgage Loan Purchase Agreement or the Wachovia
Mortgage Loan Purchase Agreement, as applicable, (ii) repurchase the affected
Mortgage Loan in accordance with Section 3(c) of the Merrill Mortgage Loan
Purchase Agreement or the Wachovia Mortgage Loan Purchase Agreement, or (iii)
within two years of the Closing Date, substitute a Qualified Substitute Mortgage
Loan for such affected Mortgage Loan and pay the Master Servicer for deposit
into the Certificate Account any Substitution Shortfall Amount in connection
therewith in accordance with Sections 3(c) and 3(d) of the Xxxxxxx Mortgage Loan
Purchase Agreement or the Wachovia Mortgage Loan Purchase Agreement; provided,
however, that if such Document Defect or Breach is capable of being cured but
not within such ninety (90) day period, such Document Defect or Breach does not
relate to the Mortgage Loan not being treated as a "qualified mortgage" within
the meaning of the REMIC Provisions, and the applicable Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such ninety (90) day period, the applicable Mortgage Loan Seller
shall have an additional ninety (90) days to complete such cure (or, failing
such cure, to repurchase the related Mortgage Loan); and provided, further, with
respect to such additional ninety (90) day period the applicable Mortgage Loan
Seller shall have delivered an Officer's Certificate to the Trustee setting
forth the reasons such Document Defect or Breach is not capable of being cured
within the initial ninety (90) day period and what actions the applicable
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that the applicable Mortgage Loan Seller anticipates such Document Defect or
Breach will be cured within the additional ninety (90) day period; and provided,
further, that no Document Defect (other than with respect to a Mortgage Note,
Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be
considered to materially and adversely affect the interests of the
Certificateholders or the value of the related Mortgage Loan unless the document
with respect to which the Document Defect exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any borrower or third party with
respect to the Mortgage Loan, establishing the validity or priority of any lien
on any collateral securing the Mortgage Loan or for any immediate servicing
obligations. In the event of a Document Defect or Breach as to a Mortgage Loan
that is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans (each a "Crossed Loan" and, collectively, a "Crossed Group"), and such
Document Defect or Breach does not constitute a Document Defect or Breach, as
the case may be, as to any other Crossed Loan in such Crossed Group (without
regard to this paragraph) and is not cured as provided for above then the
applicable Document Defect or Breach, as the case may be, shall be deemed to
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in the Crossed Group for purposes of this paragraph and the related
Mortgage Loan Seller shall be required to repurchase or substitute all such
cross-collateralized and cross-defaulted Mortgage Loans unless the Debt Service
Coverage Ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less than
the Debt Service Coverage Ratio for all such related Crossed
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Loans, including the affected Crossed Loan, for the four calendar quarters
immediately preceding such repurchase or substitution; provided, that if such
Debt Service Coverage Ratio is satisfied and any Crossed Loan is not so
repurchased or substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross default provision so long as such Crossed Loan
is held in the Trust Fund, provided, further, that the repurchase of less than
all such Crossed Loans and the release from cross-collateralization and
cross-default provision shall be subject to the delivery by the Mortgage Loan
Seller to the Trustee, at the expense of the Mortgage Loan Seller, of an Opinion
of Counsel to the effect that such release would not cause REMIC I or REMIC II
to fail to qualify as a REMIC under the Code or result in the imposition of any
tax on "prohibited transactions" or "contributions" after the Startup Day under
the REMIC Provisions, and provided, further, that the borrower under such
Mortgage Loan is an intended third party beneficiary of this provision, which
shall not be modified without such borrower's consent. In the event that one or
more of such other Crossed Loans satisfy the aforementioned criteria, the
related Mortgage Loan Seller may elect either to repurchase or substitute for
only the affected Crossed Loan as to which the related Document Defect or Breach
exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. All documentation relating to the termination of the
cross-collateralization provisions of each Crossed Loan being repurchased is to
be prepared at the expense of the applicable Mortgage Loan Seller and, where
required, with the consent of the applicable Mortgagor. For a period of two
years from the Closing Date, so long as there remains any Mortgage File as to
which there is any uncured Document Defect and so long as the applicable
Mortgage Loan Seller shall provide the Officer's Certificate pursuant to Section
3(c) of the Xxxxxxx Mortgage Loan Purchase Agreement or the Wachovia Mortgage
Loan Purchase Agreement, the Trustee shall on a quarterly basis prepare and
deliver electronically to the other parties a written report as to the status of
such uncured Document Defects as provided in Section 2.02(a). If the affected
Mortgage Loan is to be repurchased or substituted, the Master Servicer shall
designate the Certificate Account as the account to which funds in the amount of
the Purchase Price or the Substitution Shortfall Amount, as applicable, are to
be wired. Any such repurchase or substitution of a Mortgage Loan shall be on a
whole loan, servicing released basis.
(b) In connection with any repurchase or substitution of one
or more Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of the Master Servicer certifying as to the receipt of the applicable
Purchase Price(s) in the Certificate Account (in the case of any such
repurchase) or the receipt of the applicable Substitution Shortfall Amount(s) in
the Certificate Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the Master Servicer, respectively (in the case of any such
substitution), (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it, in each case without recourse, representation
or warranty, as shall be necessary to vest in the applicable Mortgage Loan
Seller the legal and beneficial ownership of each repurchased Mortgage Loan or
deleted Mortgage Loan, as applicable, being released pursuant to this Section
2.03, and (ii) the Trustee, the Custodian, the Master Servicer, and the Special
Servicer shall each tender to the applicable Mortgage Loan Seller, upon delivery
to each of them of a receipt executed by the applicable Mortgage Loan Seller,
all portions of the Mortgage File and other documents pertaining to each such
Mortgage Loan possessed by it and the Master Servicer and the Special Servicer
shall release to the applicable Mortgage Loan Seller any Escrow Payments and
Reserve Funds held by it in respect
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of such repurchased or deleted Mortgage Loan; provided, that such tender by the
Trustee or the Custodian shall be conditioned upon its receipt from the Master
Servicer or the Special Servicer of a Request for Release. Thereafter, the
Trustee, the Fiscal Agent, the Custodian, the Master Servicer and the Special
Servicer shall have no further responsibility with regard to the related
repurchased Mortgage Loan(s) or deleted Mortgage Loan(s), as applicable, and the
related Mortgage File(s) and Servicing File(s). 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 2.03,
and the Trustee shall execute any powers of attorney that are prepared and
delivered to the Trustee by the Master Servicer and are necessary to permit the
Master Servicer to do so. The Master Servicer shall indemnify the Trustee for
any reasonable costs, fees, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse by the Master Servicer of such
powers of attorney. At the time a substitution is made, the Xxxxxxx Mortgage
Loan Purchase Agreement or the Wachovia Mortgage Loan Purchase Agreement, as
applicable, will provide that the applicable Mortgage Loan Seller shall deliver
the related Mortgage File to the Trustee and certify that the substitute
Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans may be made in any calendar month after the Determination Date for such
month. Periodic Payments due with respect to any Qualified Substitute Mortgage
Loan after the related date of substitution shall be part of REMIC I. No
substitution of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan
shall be permitted under this Agreement if after such substitution, the
aggregate of the Stated Principal Balances of all Qualified Substitute Mortgage
Loans which have been substituted for deleted Mortgage Loans exceeds 10% of the
aggregate Cut-off Date Balance of all the Mortgage Loans. Periodic Payments due
with respect to any Qualified Substitute Mortgage Loan on or prior to the
related date of substitution shall not be part of the Trust Fund or REMIC I and
will (to the extent received by the Master Servicer) be remitted by the Master
Servicer to the applicable Mortgage Loan Seller promptly following receipt.
(d) The Xxxxxxx Mortgage Loan Purchase Agreement and the
Wachovia Mortgage Loan Purchase Agreement provide the sole remedies available to
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach with respect to the Mortgage Loans
purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer
(in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Sellers under
Section 3 of the Xxxxxxx Mortgage Loan Purchase Agreement and the Wachovia
Mortgage Loan Purchase Agreement.
SECTION 2.04 Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Master Servicer, the Special Servicer and the Fiscal Agent, as of the
Closing Date, that:
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(i) The Depositor is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the Depositor,
enforceable against the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Depositor's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial
condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee
as contemplated herein requires no regulatory approval, other than
any such approvals as have been obtained, and is not subject to any
bulk transfer or similar law in effect in any applicable
jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(viii) Immediately prior to the transfer of the Mortgage
Loans to the Trust Fund pursuant to this Agreement, (A) the
Depositor had good and marketable title to, and was the sole owner
and holder of, each Mortgage Loan; and (B) the Depositor has
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full right and authority to sell, assign and transfer the Mortgage
Loans and all servicing rights pertaining thereto.
(ix) The Depositor is transferring the Mortgage Loans to
the Trust Fund free and clear of any liens, pledges, charges and
security interests.
(b) The representations and warranties of the Depositor set
forth in Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties.
SECTION 2.05 Conveyance of Mortgage Loans; Acceptance of REMIC
I by Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the
Mortgage Loans (other than the Additional Interest) and the other property
comprising REMIC I to the Trustee for the benefit of the Holders of the Class
R-I Certificates and REMIC II as the holder of the REMIC I Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
other property comprising REMIC I and the portion of the Grantor Trust comprised
of Additional Interest and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
Class R-I Certificates, REMIC II as the holder of the REMIC I Regular Interests
and, as to Additional Interest, the Grantor Trust for the benefit of the Holders
of the Class Z-I and Class Z-II Certificates.
SECTION 2.06 Execution, Authentication and Delivery of Class
R-I Certificates.
The Certificate Registrar, pursuant to the written request of
the Depositor executed by an officer of the Depositor, has executed, and the
Authenticating Agent has authenticated and delivered to or upon the order of the
Depositor, in exchange for the assets included in REMIC I, the Class R-I
Certificates in authorized denominations.
SECTION 2.07 Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with
the execution and delivery of this Agreement, does hereby assign without
recourse all the right, title and interest of the Depositor in and to the REMIC
I Regular Interests to the Trustee for the benefit of the respective Holders of
the REMIC II Certificates. The Trustee acknowledges the assignment to it of the
REMIC I Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
REMIC II Certificates.
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SECTION 2.08 Execution, Authentication and Delivery of REMIC
II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests and in exchange therefor, and pursuant to the written request
of the Depositor, executed by an officer of the Depositor, the Certificate
Registrar, has executed, and the Authenticating Agent, has authenticated and
delivered to or upon the order of the Depositor, the REMIC II Certificates in
authorized denominations evidencing the entire beneficial ownership of REMIC II.
The rights of the holders of the respective Classes of REMIC II Certificates to
receive distributions from the proceeds of REMIC II in respect of their REMIC II
Certificates, and all ownership interests evidenced or constituted by the
respective Classes of REMIC II Certificates in such distributions, shall be as
set forth in this Agreement.
SECTION 2.09 Execution, Authentication and Delivery of Class
Z-I and Class Z-II Certificates.
Concurrently with the assignment to it of the Additional
Interest and in exchange therefor, the Trustee, pursuant to the written request
of the Depositor executed by an officer of the Depositor, has executed, as
Certificate Registrar, authenticated, as Authenticating Agent, and delivered to
or upon the order of the Depositor, the Class Z-I Certificates, and the Class
Z-II Certificates.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans and the Companion Loans that each is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee, for the benefit of the Certificateholders (and in the case of the
Companion Loans, the Companion Holders, the Certificateholders and the Trust
Fund, as a collective whole, taking into account that the Companion Loans are
subordinate to the related AB Mortgage Loans to the extent set forth in the
related Intercreditor Agreement) in accordance with any and all applicable laws,
the terms of this Agreement, the terms of the respective Mortgage Loans and, in
the case of the Companion Loans, the related Intercreditor Agreement, and, to
the extent consistent with the foregoing, in accordance with the Servicing
Standard. With respect to any Loan Pair, in the event of a conflict between this
Agreement and the related Intercreditor Agreement, the Intercreditor Agreement
will control; provided, in no event shall the Master Servicer or Special
Servicer take any action or omit to take any action in accordance with the terms
of any Intercreditor Agreement that would cause the Master Servicer or the
Special Servicer, as the case may be, to violate the Servicing Standard. Without
limiting the foregoing, and subject to Section 3.21, (i) the Master Servicer
shall service and administer all Mortgage Loans that are not Specially Serviced
Mortgage Loans, and (ii) the Special Servicer shall service and administer each
Specially Serviced Mortgage Loan and REO Property and shall render such services
with respect to all Mortgage Loans and REO Properties as are specifically
provided for herein; provided, that the
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Master Servicer shall continue to receive payments, make all calculations, and
prepare, or cause to be prepared, all reports required hereunder with respect to
the Specially Serviced Mortgage Loans, except for the reports specified herein
as prepared by the Special Servicer, as if no Servicing Transfer Event had
occurred and with respect to the REO Properties (and the related REO Loans) as
if no REO Acquisition had occurred, and to render such incidental services with
respect to such Specially Serviced Mortgage Loans and REO Properties as are
specifically provided for herein; provided, further, however, that the Master
Servicer shall not be liable for its failure to comply with such duties insofar
as such failure results from a failure by the Special Servicer to provide
sufficient information to the Master Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations
hereunder. All references herein to the respective duties of the Master Servicer
and the Special Servicer, and to the areas in which they may exercise
discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master
Servicer and the Special Servicer each shall have full power and authority,
acting alone, to do or cause to be done any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing, each of the Master Servicer
and the Special Servicer, in its own name, with respect to each of the Mortgage
Loans and Companion Loans it is obligated to service hereunder, is hereby
authorized and empowered by the Trustee and, pursuant to the Intercreditor
Agreements, the Companion Holders, to execute and deliver, on behalf of the
Certificateholders, the Trustee, the Companion Holders or any of them, (i) any
and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by any Mortgage or other
security document in the related Mortgage File on the related Mortgaged Property
and related collateral; (ii) in accordance with the Servicing Standard and
subject to Section 3.20 and Section 6.11, any and all modifications, waivers,
amendments or consents to or with respect to any documents contained in the
related Mortgage File; (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release, discharge, or assignment, and all
other comparable instruments; and (iv) pledge agreements and other defeasance
documents in connection with a defeasance contemplated pursuant to Section
3.20(h). Subject to Section 3.10, the Trustee shall, at the written request of
the Master Servicer or the Special Servicer, promptly execute any limited powers
of attorney and other documents furnished by the Master Servicer or the Special
Servicer that are necessary or appropriate to enable them to carry out their
servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any misuse of any such power of attorney by
the Master Servicer or the Special 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)
take any action with the intent to cause, or which actually does cause, the
Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee under this Agreement is intended by the parties
to be that of an independent contractor and not that of a joint venture, partner
or agent. Unless the same Person acts as both Master Servicer and Special
Servicer, the Master Servicer shall not be responsible for the actions of or
failure to act by the Special Servicer and the Special Servicer shall not be
responsible for the actions of or the failure to act by the Master Servicer.
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(d) Notwithstanding anything herein to the contrary, in no
event shall the Master Servicer, the Trustee or the Fiscal Agent make a
Servicing Advance with respect to any Companion Loan to the extent the related
AB Mortgage Loan has been paid in full or is no longer included in the Trust
Fund.
(e) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related Intercreditor
Agreement.
SECTION 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided, that with respect to the Mortgage Loans
that have Anticipated Repayment Dates, so long as the related Mortgagor is in
compliance with each provision of the related Mortgage Loan documents, the
Master Servicer and Special Servicer (including the Special Servicer in its
capacity as a Certificateholder), shall not take any enforcement action with
respect to the failure of the related Mortgagor to make any payment of
Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided, that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. The Master Servicer may, in its discretion, with
respect to Mortgage Loans that have Anticipated Repayment Dates, waive any or
all of the Additional Interest accrued on any such Mortgage Loan if the
Mortgagor is ready and willing to pay all other amounts due under such Mortgage
Loan in full, including the Stated Principal Balance, provided that it acts in
accordance with the Servicing Standard and it has received the consent of the
Special Servicer, and neither the Master Servicer nor the Special Servicer will
have any liability to the Trust Fund, the Certificateholders or any other person
for any determination that is made in accordance with the Servicing Standard.
Consistent with the foregoing and subject to Section 3.20, the Special Servicer,
with regard to a Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a Mortgage Loan that is not a Specially Serviced Mortgage Loan may
waive any Penalty Interest or late payment charge in connection with any payment
on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan or a
Companion Loan in the form of payments from Mortgagors, Liquidation Proceeds
(insofar as such Liquidation Proceeds are of the nature described in clauses (i)
through (iii) of the definition thereof) or Insurance Proceeds shall be applied
to either amounts due and owing under the related Mortgage Note and Mortgage
(including, without limitation, for principal and accrued and unpaid interest)
in accordance with the express provisions of the related Mortgage Note and
Mortgage (and, with respect to each Loan Pair, the related Intercreditor
Agreement and the documents evidencing and securing the Companion Loan) or, if
required pursuant to the express
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provisions of the related Mortgage, or as determined by the Master Servicer or
Special Servicer in accordance with the Servicing Standard, to the repair or
restoration of the related Mortgaged Property, and, in the absence of such
express provisions, shall be applied for purposes of this Agreement: first, as a
recovery of any related and unreimbursed Advances plus unreimbursed interest
accrued thereon; second, as a recovery of accrued and unpaid interest at the
related Mortgage Rate on such Mortgage Loan, to the extent such amounts have not
been previously advanced, and exclusive of any portion thereof that constitutes
Additional Interest; third, as a recovery of principal of such Mortgage Loan
then due and owing, to the extent such amounts have not been previously
advanced, including, without limitation, by reason of acceleration of the
Mortgage Loan following a default thereunder; fourth, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts then due and owing under such Mortgage Loan (other than Additional
Interest), including, without limitation, Prepayment Premiums, Yield Maintenance
Charges and Penalty Interest; fifth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and sixth, with respect to any ARD Loan after its Anticipated Repayment
Date, as a recovery of any unpaid Additional Interest. All amounts collected on
any Mortgage Loan in the form of Liquidation Proceeds of the nature described in
clauses (iv) through (vi) of the definition thereof shall be deemed to be
applied: first, as a recovery of any related and unreimbursed Advances plus
interest accrued thereon; second, as a recovery of accrued and unpaid interest
at the related Mortgage Rate on such Mortgage Loan to but not including the Due
Date in the Collection Period of receipt, to the extent such amounts have not
been previously advanced, and exclusive of any portion thereof that constitutes
Additional Interest; third, as a recovery of principal, to the extent such
amounts have not been previously advanced, of such Mortgage Loan to the extent
of its entire unpaid principal balance; and fourth, with respect to any ARD Loan
after its Anticipated Repayment Date, as a recovery of any unpaid Additional
Interest. No such amounts shall be applied to the items constituting additional
servicing compensation as described in the first sentence of Section 3.11(b) or
3.11(d) unless and until all principal and interest and other amounts (other
than late fees and Penalty Interest) then due and payable on such Mortgage Loan
has been collected. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof. The provisions of this
paragraph with respect to the application of amounts collected on any Mortgage
Loan shall not alter in any way the right of the Master Servicer, the Special
Servicer or any other Person to receive payments from the Certificate Account as
set forth in clauses (ii) through (xiv) of Section 3.05(a) from amounts so
applied.
(c) Within 30 days after the Closing Date, the Master Servicer
shall notify each Lease Enhancement Policy Insurer that (i) both the Master
Servicer and the Special Servicer shall be sent notices under each Lease
Enhancement Policy and (ii) LaSalle Bank National Association, as trustee for
the registered holders of the Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1, respectively, shall be named the
insured party under each Lease Enhancement Policy. In the event that the Master
Servicer has actual knowledge of an Insured Event under any Lease Enhancement
Policy, the Master Servicer shall notify the Special Servicer thereof within
three Business Days after learning of such event. With respect to each Lease
Enhancement Policy, the Master Servicer and the Special Servicer shall each
review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy. The Special Servicer shall
prepare and file a
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"proof of loss" form with the Lease Enhancement Policy Insurer within five
Business Days after receiving notice or obtaining actual knowledge of any
Insured Event under the related policy and shall diligently process any claims
under such policy in accordance with the Servicing Standard. The Special
Servicer shall abide by the terms and conditions relating to enforcing claims
and monitor the dates by which any claim or action must be taken (including
delivering any notices to the Lease Enhancement Policy Insurer or performing any
actions required under each policy) under each Lease Enhancement Policy to
realize the full value of such Lease Enhancement Policy for the benefit of the
Certificateholders. The Special Servicer shall give notice to the Master
Servicer of any claim made under any Lease Enhancement Policy and of any Policy
Termination Event of which the Master Servicer does not already have notice.
(d) In the event that the Master Servicer receives notice of
any Policy Termination Event, the Master Servicer shall, within three Business
Days after receipt of such notice, notify the Special Servicer, the Trustee and
the Rating Agencies of such Policy Termination Event in writing. Upon receipt of
such notice, the Special Servicer shall, notwithstanding that the servicing of
the related Mortgage Loan may not have been transferred to the Special Servicer
in accordance with Section 3.21 hereof, address such Policy Termination Event in
accordance with the Servicing Standard. Any legal fees incurred in connection
with a resolution of a Policy Termination Event shall be paid by the Master
Servicer as a Servicing Advance at the request of the Special Servicer or if
such advance is deemed to be a Nonrecoverable Advance such fees shall be
reimbursable to the Special Servicer as an Additional Trust Fund Expense from
the Certificate Account pursuant to Section 3.05(a).
(e) Within 60 days after the Closing Date, the Master Servicer
shall notify each provider of a letter of credit for each Mortgage Loan
identified as having a letter of credit on the Mortgage Loan Schedule, that the
Master Servicer or the Special Servicer on behalf of the Trustee for the benefit
of the Certificateholders shall be the beneficiary under each such letter of
credit.
(f) In the event that the Master Servicer or Special Servicer
receives Additional Interest in any Collection Period, or receives notice from
the related Mortgagor that the Master Servicer or Special Servicer will be
receiving Additional Interest in any Collection Period, the Master Servicer or
Special Servicer, as applicable, will promptly notify the Trustee. Subject to
the provisions of Section 3.02(a) hereof, none of the Master Servicer, the
Trustee, the Fiscal Agent or the Special Servicer shall be responsible for any
such Additional Interest not collected after notice from the related Mortgagor.
(g) With respect to any Mortgage Loan in connection with which
the Mortgagor was required to escrow funds or to post a letter of credit related
to obtaining certain performance objectives described in the applicable Mortgage
Loan Documents, the Master Servicer (with the consent of the Special Servicer)
to the extent the Mortgage Loan Documents provide for any discretion, with
respect to non-Specially Serviced Mortgage Loans, or the Special Servicer, with
respect to Specially Serviced Mortgage Loans shall, to the extent consistent
with the Servicing Standard, hold such escrows, letters of credit and proceeds
thereof as additional collateral and not apply such items to reduce the
principal balance of such Mortgage Loan unless otherwise required to do so
pursuant to the applicable Mortgage Loan Documents, applicable law or the
Servicing Standard.
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SECTION 3.03 Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans
establish and maintain one or more accounts (the "Servicing Accounts"), into
which all Escrow Payments shall be deposited and retained, and shall administer
such accounts in accordance with the terms of the Mortgage Loan documents. Each
Servicing Account shall be an Eligible Account unless not permitted by the terms
of the Mortgage Loan Documents. Withdrawals of amounts so collected from a
Servicing Account may be made (to the extent amounts have been escrowed for such
purpose) only to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Master Servicer, the Trustee
or the Fiscal Agent for any unreimbursed Servicing Advances; (iii) refund to
Mortgagors any sums as may be determined to be overages; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Servicing
Account; (v) pay itself interest and investment income on balances in the
Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of the applicable Mortgage Loan to be paid to the
Mortgagor; (vi) withdraw amounts deposited in error; (vii) clear and terminate
the Servicing Account at the termination of this Agreement in accordance with
Section 9.01; or (viii) only as, when and to the extent required under the terms
of the related Intercreditor Agreement with respect to each Loan Pair, and for
all other Mortgage Loans, to the extent permitted under the Mortgage Loan
Documents, to effect payment of accrued and unpaid late charges, default
interest and other reasonable fees. To the extent permitted by law or the
applicable Mortgage Loan, funds in the Servicing Accounts may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06 and
in accordance with the terms of the related Mortgage Loan documents. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
required by law or the terms of the related Mortgage Loan. If the Master
Servicer shall deposit in a Servicing Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Servicing
Account, any provision herein to the contrary notwithstanding. The Servicing
Accounts shall not be considered part of the segregated pool of assets
constituting REMIC I, REMIC II or the Grantor Trust.
(b) The Master Servicer (or the Special Servicer for Specially
Serviced Mortgage Loans and REO Loans) shall (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and REO Loans) as allowed under the terms
of the related Mortgage Loan or, if such Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall, as to all Mortgage Loans, use reasonable efforts consistent with
the Servicing Standard to enforce the requirement of the related Mortgage
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that the Mortgagor make payments in respect of such items at the time they first
become due, and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans, make
a Servicing Advance with respect to the related Mortgaged Property in an amount
equal to all such funds as are necessary for the purpose of effecting the
payment of the costs and expenses described in the definition of "Servicing
Advances", provided that the Master Servicer shall not make any Servicing
Advance prior to the penalty date or cancellation date, as applicable, if the
Master Servicer reasonably anticipates in accordance with the Servicing Standard
that the Mortgagor will pay such amount on or before the penalty date or
cancellation date, and provided, further, that the Master Servicer shall not be
obligated to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and in the case of REO Properties, from the operating revenues related thereto,
and further as provided in Section 3.05(a). No costs incurred by the Master
Servicer in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes of this Agreement, including, without limitation, the Trustee's
calculation of monthly distributions to Certificateholders, be added to the
unpaid Stated Principal Balances of the related Mortgage Loans, notwithstanding
that the terms of such Mortgage Loans so permit. The foregoing shall in no way
limit the Master Servicer's ability to charge and collect from the Mortgagor
such costs together with interest thereon.
The Special Servicer shall give the Master Servicer, the
Trustee and the Fiscal Agent not less than five Business Days' notice with
respect to Servicing Advances to be made on any Specially Serviced Mortgage Loan
or REO Property, before the date on which the Master Servicer is required to
make any Servicing Advance with respect to a given Mortgage Loan or REO
Property; provided, however, that only two Business Days' notice shall be
required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments). In addition, the Special Servicer
shall provide the Master Servicer, the Trustee and the Fiscal Agent with such
information in its possession as the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, may reasonably request to enable the Master Servicer, the
Trustee or the Fiscal Agent, as applicable, to determine whether a requested
Servicing Advance would constitute a Nonrecoverable Servicing Advance. Any
request by the Special Servicer that the Master Servicer make a Servicing
Advance shall be deemed to be a determination by the Special Servicer that such
requested Servicing Advance is not a Nonrecoverable Servicing Advance, and the
Master Servicer shall be entitled to conclusively rely on such determination. On
the fourth Business Day before each Distribution Date, the Special Servicer
shall report to the Master Servicer the Special Servicer's determination as to
whether any Servicing Advance previously made with respect to a Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. The
Master Servicer shall be entitled to conclusively rely on such a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible
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Officer of the Trustee has actual knowledge of such failure on the part of the
Master Servicer, give written notice of such failure to the Master Servicer. If
such Servicing Advance is not made by the Master Servicer within three Business
Days after such notice then (subject to a determination that such Servicing
Advance would not be a Nonrecoverable Servicing Advance) the Trustee shall make
such Servicing Advance. If the Trustee does not make such Servicing Advance
within such period, the Fiscal Agent shall make such Servicing Advance within
such period. Any failure by the Master Servicer to make a Servicing Advance
hereunder shall constitute an Event of Default by the Master Servicer subject to
and as provided in Section 7.01.
(d) In connection with its recovery of any Servicing Advance
from the Certificate Account pursuant to Section 3.05(a), each of the Master
Servicer, the Trustee and the Fiscal Agent shall be entitled to receive, out of
any amounts then on deposit in the Certificate Account, any unpaid interest at
the Reimbursement Rate (or, with respect to each Loan Pair, the rate provided in
the related Intercreditor Agreement) in effect from time to time, compounded
annually, accrued on the amount of such Servicing Advance (to the extent made
with its own funds) from the date made to but not including the date of
reimbursement such interest to be payable, first, subject to the terms of the
related Intercreditor Agreement with respect to each Loan Pair, out of late
payment charges and Penalty Interest received on the related Mortgage Loans,
Companion Loans and REO Properties during the Collection Period in which such
reimbursement is made, and to the extent that such late payment charges and
Penalty Interest are insufficient, but only after or at the same time the
related Advance has been or is reimbursed pursuant to this Agreement, then from
general collections on the Mortgage Loans and Companion Loans then on deposit in
the Certificate Account. To the extent the Master Servicer receives late payment
charges or Penalty Interest on a Mortgage Loan for which interest on Advances or
Additional Trust Fund Expenses related to such Mortgage Loan has been paid from
general collections on deposit in the Certificate Account during the preceding
12-month period and not previously reimbursed, the Master Servicer shall deposit
in the Certificate Account, on or prior to the P&I Advance Date following the
collection of such late payment charges or Penalty Interest, an amount equal to
the lesser of (i) the amount of late payment charges or Penalty Interest
received on such Mortgage Loan or (ii) the amount of interest paid to the Master
Servicer and Additional Trust Fund Expenses incurred on the related Servicing
Advance for such Mortgage Loan during such 12-month period for which the Trust
Fund has not been previously reimbursed. The Master Servicer shall reimburse
itself, the Trustee or the Fiscal Agent, as applicable, for any outstanding
Servicing Advance made thereby as soon as practicable after funds available for
such purpose have been received by the Master Servicer, and in no event shall
interest accrue in accordance with this Section 3.03(d) on any Servicing Advance
as to which the corresponding Escrow Payment or other similar payment by the
Mortgagor was received by the Master Servicer on or prior to the date the
related Servicing Advance was made. Notwithstanding anything herein to the
contrary, in no event shall the Master Servicer, the Trustee or the Fiscal Agent
be entitled to reimbursement from funds on deposit in the Certificate Account
for any Servicing Advance made solely with respect to any Companion Loan to the
extent that the related AB Mortgage Loan has been paid in full.
(e) The determination by the Master Servicer that it has made
a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee,
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the Fiscal Agent and the Depositor, setting forth the basis for such
determination, together with a copy of any Appraisal (the cost of which may be
paid out of the Certificate Account pursuant to Section 3.05(a)) of the related
Mortgaged Property or REO Property, as the case may be; which Appraisal shall be
conducted pursuant to Section 3.09(a) by the Master Servicer, or by or on behalf
of the Special Servicer if the Mortgage Loan is a Defaulted Mortgage Loan or, if
no such Appraisal has been performed, a copy of an Appraisal of the related
Mortgaged Property or REO Property, performed within the twelve months preceding
such determination and the party delivering such appraisal has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property that would draw into question the applicability of such Appraisal, by
an Independent Appraiser or other expert in real estate matters, and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property and any engineers'
reports, environmental surveys or similar reports that the Master Servicer or
the Special Servicer may have obtained and that support such determination. The
Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Master Servicer has failed to make a Servicing Advance for reasons other
than a determination by the Master Servicer that such Servicing Advance would be
a Nonrecoverable Advance, the Trustee or the Fiscal Agent shall make such
Servicing Advance within the time periods required by Section 3.03(c) unless the
Trustee or the Fiscal Agent in good faith, makes a determination that such
Servicing Advance would be a Nonrecoverable Advance.
(f) The Master Servicer shall, as to all Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the "Reserve
Accounts"), into which all Reserve Funds, if any, shall be deposited and
retained. Withdrawals of amounts so deposited may be made (i) to pay for, or to
reimburse the related Mortgagor in connection with, the related environmental
remediation, repairs and/or capital improvements at the related Mortgaged
Property if the repairs and/or capital improvements have been completed, and
such withdrawals are made in accordance with the Servicing Standard and the
terms of the related Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing such Reserve Funds and any other items for which such
Reserve Funds were intended pursuant to the loan documents and (ii) to pay the
Master Servicer interest and investment income earned on amounts in the Reserve
Accounts as described below if permitted under the related Mortgage Loan
documents. To the extent permitted in the applicable Mortgage, funds in the
Reserve Accounts to the extent invested may be only invested in Permitted
Investments in accordance with the provisions of Section 3.06. All Reserve
Accounts shall be Eligible Accounts. The Reserve Accounts shall not be
considered part of the segregated pool of assets comprising REMIC I, REMIC II or
the Grantor Trust. Consistent with the Servicing Standard, the Master Servicer
may waive or extend the date set forth in any agreement governing such Reserve
Funds by which the required repairs and/or capital improvements at the related
Mortgaged Property must be completed.
SECTION 3.04 Certificate Account, Interest Reserve Account,
Additional Interest Account, Distribution Account and Companion Distribution
Account.
(a) The Master Servicer shall establish and maintain one or
more accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master
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Servicer shall deposit or cause to be deposited in the Certificate Account,
within one Business Day of receipt of available funds (in the case of payments
by Mortgagors or other collections on the Mortgage Loans) or as otherwise
required hereunder, the following payments and collections received or made by
the Master Servicer or on its behalf subsequent to the Cut-off Date (other than
in respect of principal and interest on the Mortgage Loans due and payable on or
before the Cut-off Date, which payments shall be delivered promptly to the
applicable Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse), other than amounts
received from Mortgagors which are to be used to purchase defeasance collateral,
or payments (other than Principal Prepayments) received by it on or prior to the
Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage
Loans and the Companion Loans including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans and the Companion Loans including Additional Interest;
(iii) all Prepayment Premiums and Yield Maintenance
Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds
(other than Liquidation Proceeds described in clause (vi) of the
definition thereof that are required to be deposited in the
Distribution Account pursuant to Section 9.01) received in respect
of any Mortgage Loan;
(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the
Certificate Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c);
(viii) any amount in respect of Purchase Prices and
Substitution Shortfall Amounts pursuant to Section 2.03(b);
(ix) any amount required to be deposited by the Master
Servicer pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls;
(x) any amount required to be deposited by the Master
Servicer pursuant to Section 3.03(d) and 4.03(d) in connection with
reimbursing the Trust Fund for interest paid on a P&I Advance or
Servicing Advance, as applicable; and
(xi) any amount paid by a Mortgagor to cover items for
which a Servicing Advance has been previously made and for which the
Master Servicer, the
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Trustee or the Fiscal Agent, as applicable, has been previously
reimbursed out of the Certificate Account.
The foregoing requirements for deposit in the Certificate
Account shall be exclusive, provided that with respect to the Wachovia AB
Mortgage Loan and the Wachovia Companion Loan, late charges and Penalty Interest
shall be deposited in the Certificate Account. Notwithstanding the foregoing,
actual payments from Mortgagors in the nature of Escrow Payments, amounts to be
deposited in Reserve Accounts, and amounts that the Master Servicer and the
Special Servicer are entitled to retain as additional servicing compensation
pursuant to Sections 3.11(b) and (d), need not be deposited by the Master
Servicer in the Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly deliver to
the Special Servicer as additional servicing compensation in accordance with
Section 3.11(d), assumption fees, late payment charges (to the extent not
applied to pay interest on Advances or Additional Trust Fund Expenses as
provided in Sections 3.03(d) or 4.03(d) or, so long as such amount would not
otherwise be payable to the Certificateholders, otherwise required to be paid or
applied in accordance with the related Intercreditor Agreement for the Wachovia
AB Mortgage Loan and the Wachovia Companion Loans) and other transaction fees or
other expenses received by the Master Servicer to which the Special Servicer is
entitled pursuant to either of such Sections upon receipt of a certificate of a
Servicing Officer of the Special Servicer describing the item and amount. The
Certificate Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage pass-through certificates of other
series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i)
through (iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than one Business Day after receipt of available
funds, remit such amounts (net of any reimbursable expenses incurred by the
Special Servicer) to or at the direction of the Master Servicer for deposit into
the Certificate Account in accordance with the second preceding paragraph,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item should not be deposited because of a restrictive
endorsement. Any such amounts received by the Special Servicer with respect to
an REO Property shall be deposited by the Special Servicer into the REO Account
and remitted to the Master Servicer for deposit into the Certificate Account
pursuant to Section 3.16(c). With respect to any such amounts paid by check to
the order of the Special Servicer, the Special Servicer shall endorse such check
to the order of the Master Servicer and shall deliver promptly, but in no event
later than three Business Days after receipt, any such check to the Master
Servicer by overnight courier, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement or other appropriate
reason.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer shall
deliver to the Trustee each month on or before 2:00 PM (New York City time) on
the P&I Advance Date therein, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution
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Amount (calculated without regard to clauses (a)(ii), (a)(v) and (b)(ii)(B) of
the definition thereof, and exclusive of payments and other amounts received
after the end of the related Collection Period) for the related Distribution
Date then on deposit in the Certificate Account, together with (i) any
Prepayment Premiums, Yield Maintenance Charges and/or Additional Interest
received on the Mortgage Loans during the related Collection Period, and (ii) in
the case of the final Distribution Date, any additional amounts contemplated by
the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a); and
(ii) the Purchase Price paid in connection with the
purchase by the Master Servicer of all of the Mortgage Loans and any
REO Properties pursuant to Section 9.01, exclusive of the portion of
such amounts required to be deposited in the Certificate Account
pursuant to Section 9.01.
The Trustee shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or
more accounts (collectively, the "Interest Reserve Account"), held on behalf of
the Trustee in trust for the benefit of the Certificateholders. The Interest
Reserve Account shall be an Eligible Account. On or before each Distribution
Date in February and, during each year that is not a leap year, January, the
Master Servicer shall withdraw from the Certificate Account and deposit in the
Interest Reserve Account, with respect to each Interest Reserve Loan, an amount
equal to the Interest Reserve Amount in respect of such Interest Reserve Loan
for such Distribution Date (such withdrawal from the Certificate Account to be
made out of general collections on the Mortgage Pool where any related P&I
Advance was deposited in the Distribution Account).
(d) Prior to any Collection Period during which Additional
Interest is received, and upon notification from the Master Servicer or Special
Servicer pursuant to Section 3.02(f), the Trustee shall establish and maintain
the Additional Interest Account in the name of the Trustee in trust for the
benefit of the Class Z-I and Class Z-II Certificateholders. The Additional
Interest Account shall be established and maintained as an Eligible Account.
Prior to the applicable Distribution Date, the Master Servicer shall remit to
the Trustee for deposit in the Additional Interest Account an amount equal to
the Additional Interest received during the applicable Collection Period.
(e) Following the distribution of Additional Interest to Class
Z-I and Class Z-II Certificateholders on the first Distribution Date after which
there are no longer any Mortgage Loans outstanding which pursuant to their terms
could pay Additional Interest, the Trustee shall terminate the Additional
Interest Account.
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(f) The Companion Paying Agent shall establish and maintain a
trust account for distributions to the Companion Loans (the "Companion
Distribution Account") at its offices to be held in trust for the benefit of the
Companion Holders. The Companion Distribution Account shall be an Eligible
Account. The Master Servicer shall deliver to the Companion Paying Agent each
month on or before the P&I Advance Date therein, for deposit in the Companion
Distribution Account, an aggregate amount of immediately available funds equal
to the amount available to be paid to the Companion Holders pursuant to the
related Intercreditor Agreement, net of accrued and unpaid Master Servicing Fees
and reimbursement of Servicing Advances with respect to the Radisson Companion
Loan.
(g) Funds in the Certificate Account and the Interest Reserve
Account may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. Funds in the Distribution Account and the Additional
Interest Account shall remain uninvested. The Master Servicer shall give written
notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof. The Trustee
shall give written notice to the Master Servicer, the Special Servicer and the
Rating Agencies of any new location of the Distribution Account prior to any
change thereof.
Section 3.05 Permitted Withdrawals From the Certificate
Account, Interest Reserve Account, the Additional Interest Account and the
Distribution Account.
(a) The Master Servicer may, from time to time, make
withdrawals from the Certificate Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the
Distribution Account the amounts required to be so deposited
pursuant to the first paragraph of Section 3.04(b) and any amount
that may be applied to make P&I Advances pursuant to Section
4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and
itself, in that order, for xxxxxxxxxxxx X&X Advances, the Fiscal
Agent's, the Trustee's and Master Servicer's right to reimbursement
pursuant to this clause (ii) with respect to any P&I Advance (other
than Nonrecoverable Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest and principal (net of any related Workout
Fee or Principal Recovery Fee) (A) received in respect of the
particular Mortgage Loan or REO Loan as to which such P&I Advance
was made and (B) if the P&I Advance was made in respect to an AB
Mortgage Loan, received in respect of the related Companion Loan;
(iii) to pay to itself earned and unpaid Master
Servicing Fees in respect of each Mortgage Loan and REO Loan, and,
to the extent not paid pursuant to Section 3.04(e) or Section
4.01(i), the Master Servicing Fee in respect of the Radisson
Companion Loan and the TRW Companion Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan
(whether in
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the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds) that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid
Special Servicing Fees in respect of each Specially Serviced
Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees or
Principal Recovery Fees in respect of each Specially Serviced
Mortgage Loan, Corrected Mortgage Loan and REO Loan, the Special
Servicer's (or, if applicable, any predecessor Special Servicer's)
right to payment pursuant to this clause (v) with respect to any
such Mortgage Loan or REO Loan being limited to amounts received on
or in respect of such Specially Serviced Mortgage Loan or Corrected
Mortgage Loan (whether in the form of payments or Liquidation
Proceeds) or such REO Loan (whether in the form of REO Revenues or
Liquidation Proceeds) that are allocable as a recovery of principal
or interest thereon (provided that no Principal Recovery Fee shall
be payable out of (i) Insurance Proceeds and (ii) any Liquidation
Proceeds received in connection with a condemnation or the purchase
of any Mortgage Loan or REO Property by a Mortgage Loan Seller
pursuant to the Xxxxxxx Mortgage Loan Purchase Agreement or the
Wachovia Mortgage Loan Purchase Agreement, by the Majority
Subordinate Certificateholder, the Companion Holder, the Abbey
Mezzanine Lender or the Special Servicer as described in Section
3.18(c), Section 3.18(e), Section 3.18(h), Section 3.18(m) or
3.26(d), or by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01)
provided, however, with respect to Section 3.18(m) that if the Abbey
Mezzanine Lender does not exercise its right to purchase the
applicable Mortgage Loan within the 15 day time period pursuant to
the Abbey Intercreditor Agreement, with respect to any purchase of
the applicable Mortgage Loan, the Abbey Mezzanine Lender will be
required to pay an amount equal to 1% of the purchase price of the
applicable Mortgage Loan to the Special Servicer as a Principal
Recovery Fee (and such Principal Recovery Fee will not be an expense
of the Trust);
(vi) to reimburse the Fiscal Agent, the Trustee or
itself, in that order, for any unreimbursed Servicing Advances, the
Fiscal Agent's, the Trustee's and the Master Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to
any Servicing Advance being limited to payments made by the related
Mortgagor that are allocable to such Servicing Advance, or to
Liquidation Proceeds, Insurance Proceeds and, if applicable, REO
Revenues received in respect of the particular Mortgage Loan,
Companion Loan or REO Property as to which such Servicing Advance
was made;
(vii) to reimburse the Fiscal Agent, the Trustee or
itself, in that order, for any unreimbursed Advances that have been
or are determined to be Nonrecoverable Advances or to pay itself,
with respect to any Mortgage Loan, the Radisson Companion Loan or
any REO Property, any related earned Master Servicing Fee that
remained unpaid in accordance with clause (iii) above following a
Final Recovery Determination made with respect to such Mortgage Loan
or REO Property and the deposit into the Certificate Account of all
amounts received in connection therewith;
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(viii) at such time as it reimburses the Fiscal Agent,
the Trustee or itself, in that order, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above, to pay the Fiscal
Agent, the Trustee or itself, as the case may be, in that order, any
interest accrued and payable thereon in accordance with Section
3.03(d) or 4.03(d), as applicable; the Master Servicer's rights to
payment pursuant to this clause (viii) with respect to interest on
any Advance being permitted to be satisfied (A) subject to the terms
of the related Intercreditor Agreement with respect to each Loan
Pair, out of late payment charges and Penalty Interest collected on
or in respect of the related Mortgage Loan and if the Advance was
made with respect to an AB Mortgage Loan, out of such amounts
collected on or in respect of the related Companion Loan) and REO
Loan, during the Collection Period in which such Advance is
reimbursed (the use of such late payment charges and Penalty
Interest to be allocated between the Master Servicer and the Special
Servicer on a pro rata basis based on the amount of late payment
charges and Penalty Interest that the Master Servicer and the
Special Servicer have received as additional servicing compensation
during such Collection Period), and (B) to the extent that the late
payment charges and Penalty Interest described in the immediately
preceding clause (A) are insufficient, but only at the same time or
after such Advance has been reimbursed, out of general collections
on the Mortgage Loans, Companion Loans and any REO Properties on
deposit in the Certificate Account;
(ix) to pay for costs and expenses incurred by the Trust
Fund as an Additional Trust Fund Expense pursuant to Section
3.12(a);
(x) to pay itself, as additional servicing compensation
in accordance with Section 3.11(b), (A) interest and investment
income earned in respect of amounts held in the Certificate Account
as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any
Collection Period; (B) any Prepayment Interest Excesses (after
deduction of the amounts required to be deposited by the Master
Servicer in the Certificate Account for the related Distribution
Date pursuant to Section 3.19(a) in connection with Prepayment
Interest Shortfalls); and (C) Penalty Interest and late payment
charges (to the extent such Penalty Interest and/or late payment
charges were not applied to offset interest on Advances or
Additional Trust Fund Expenses pursuant to clause (viii)(A) or
Additional Trust Fund Expenses pursuant to Section 3.03(d) or
inspection expenses pursuant to Section 3.12(a));
(xi) to pay for the cost of an independent appraiser or
other expert in real estate matters retained pursuant to Section
3.03(e), 3.09(a), 3.18 or 4.03(c);
(xii) to pay itself, the Special Servicer, the
Depositor, or any of their respective directors, officers, members,
managers, employees and agents, as the case may be, any amounts
payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and tax
accountants contemplated by Section 3.17(a)(iii), (B) the cost of
the Opinions of Counsel contemplated by Sections 3.09(b)(ii),
3.20(d) and 11.02(a), (C) the cost of an Opinion of Counsel
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the
Special Servicer
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that protects or is in furtherance of the rights and interests of
Certificateholders, and (D) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, any of the
Mortgage Loan Sellers, the Majority Subordinate Certificateholder,
any Companion Holder or any other Person, as the case may be, with
respect to each Mortgage Loan, if any, previously purchased by such
Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase;
(xv) to withdraw any Interest Reserve Amount and deposit
such Interest Reserve Amount into the Interest Reserve Account
pursuant to Section 3.04(c);
(xvi) to remit to the Trustee for deposit into the
Additional Interest Account the amounts required to be deposited
pursuant to Section 3.04(d);
(xvii) to remit to the Trustee for deposit into the
Distribution Account the amounts required to be deposited pursuant
to Section 3.04(b);
(xviii) to remit to the Companion Paying Agent for
deposit in each Companion Distribution Account the amounts required
to be deposited pursuant to Section 3.04(f);
(xix) to pay the cost of any Environmental Assessment or
any remedial, corrective or other action pursuant to Section
3.09(c);
(xx) to withdraw any amounts deposited in error;
(xxi) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from the Certificate Account;
and
(xxii) to clear and terminate the Certificate Account at
the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate
accounting records, on a loan-by-loan basis when appropriate, in connection with
any withdrawal from the Certificate Account pursuant to clauses (ii)-(xviii)
above and such records shall be sufficient to determine the amounts attributable
to REMIC I. The Master Servicer shall, to the extent permitted by the terms of
the related Intercreditor Agreement, make claims for reimbursement from the
related Companion Holder in connection with related Servicing Advances and
interest thereon and other related expenses so as to minimize the total amount
of withdrawals on the Certificate Account for such items. Notwithstanding
anything in this Section 3.05(a) to the contrary, in no event shall the Master
Servicer withdraw from funds on deposit in the Certificate Account any amount to
be applied to, or to provide reimbursement for, any amounts referenced in this
Section 3.05(a) (other than amounts referenced in clause (xviii)) which relate
to any Companion Loan to the extent the related AB Mortgage Loan has been paid
in full in a prior Collection Period.
The Master Servicer shall pay to the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
or the Fiscal Agent from the Certificate
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Account amounts permitted to be paid to the Special Servicer (or to such third
party contractors), the Trustee or the Fiscal Agent therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer or of a
Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
describing the item and amount to which the Special Servicer (or such third
party contractors), the Trustee or the Fiscal Agent, as the case maybe, is
entitled. The Master Servicer may rely conclusively on any such certificate and
shall have no duty to re-calculate the amounts stated therein. The Special
Servicer shall keep and maintain separate accounting for each Specially Serviced
Mortgage Loan and REO Property, on a loan-by-loan and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
Certificate Account. With respect to each Mortgage Loan for which it makes an
Advance, the Trustee and the Fiscal Agent shall similarly keep and maintain
separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account for reimbursements of Advances or
interest thereon.
(b) The Trustee may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make deemed distributions to itself as holder of
the REMIC I Regular Interests and to make distributions to
Certificateholders on each Distribution Date pursuant to Section
4.01 or 9.01, as applicable;
(ii) to pay itself, the Fiscal Agent or any of their
directors, officers, employees and agents, as the case may be, any
amounts payable or reimbursable to any such Person pursuant to
Section 8.05 to the extent not paid pursuant to Section 4.01(i);
(iii) to pay itself respective portions of the Trustee
Fee as contemplated by Section 8.05(a) hereof with respect to the
Mortgage Loans;
(iv) to pay for the cost of the Opinions of Counsel
sought by it (A) as provided in clause (v) of the definition of
"Disqualified Organization", (B) as contemplated by Section 3.20(d),
9.02(a) and 10.01(h), or (C) as contemplated by Section 11.01(a) or
11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes
imposed on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, to the extent none of the Trustee, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(i);
(vi) to pay the REMIC Administrator any amounts
reimbursable to it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts
deposited by the Master Servicer in the Distribution Account not
required to be deposited therein; and
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(viii) to clear and terminate the Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
(c) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account as contemplated by Section
4.01(i).
(d) The Master Servicer shall on each P&I Advance Date to
occur in March of each year, withdraw from the Interest Reserve Account and
deposit into the Distribution Account in respect of each Interest Reserve Loan,
an amount equal to the aggregate of the Interest Reserve Amounts deposited into
the Interest Reserve Account pursuant to Section 3.04(c) during the immediately
preceding Collection Period and, if applicable, the second preceding Collection
Period.
(e) The Trustee shall, on any Distribution Date, make
withdrawals from the Additional Interest Account to the extent required to make
the distributions of Additional Interest required by Section 4.01(b).
SECTION 3.06 Investment of Funds in the Servicing Accounts,
the Reserve Accounts, the Certificate Account, the Interest Reserve Account, the
Distribution Account, the Additional Interest Account, the Companion
Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Interest
Reserve Account or the Certificate Account (each, for purposes of this Section
3.06, an "Investment Account"), and the Special Servicer may direct in writing
any depository institution maintaining the REO Account (also, for purposes of
this Section 3.06, an "Investment Account"), to invest, or if it is such
depository institution, may itself invest, the funds held therein only in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. Funds held in the Distribution Account,
the Additional Interest Account and the Companion Distribution Account shall
remain uninvested. In the event that the Master Servicer shall have failed to
give investment directions for any Servicing Account, any Reserve Account, the
Certificate Account, the Interest Reserve Account (exclusive of any accounts as
are held by the Master Servicer) or the Special Servicer shall have failed to
give investment directions for the REO Account by 11:00 A.M. New York time on
any Business Day on which there may be uninvested cash, such funds held in the
REO Account shall be invested in securities described in clause (i) of the
definition of the term "Permitted Investments"; and such funds held in such
other accounts shall be invested in securities described in clause (v) of such
definition. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Servicing Accounts, the
Reserve Accounts, the Certificate Account or the Interest Reserve Account) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person that
shall) maintain continuous possession of any Permitted
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Investment that is either (i) a "certificated security", as such term is defined
in the UCC, or (ii) other property in which a secured party may perfect its
security interest by possession under the UCC or any other applicable law.
Possession of any such Permitted Investment by the Master Servicer or the
Special Servicer shall constitute possession by the Trustee, as secured party,
for purposes of Section 9-313 of the UCC and any other applicable law. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Certificate Account, Servicing Accounts, the Interest Reserve Account and
Reserve Accounts), or the Special Servicer (in the case of the REO Account)
shall:
(i) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder
promptly upon determination by the Master Servicer or the Special
Servicer, as the case may be, that such Permitted Investment would
not constitute a Permitted Investment in respect of funds thereafter
on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, or the Interest Reserve Account, interest and investment income
realized on funds deposited therein, to the extent of the related Net Investment
Earnings, if any, for each Collection Period and, in the case of a Reserve
Account or a Servicing Account, to the extent not otherwise payable to the
related Mortgagor in accordance with applicable law or the related Mortgage Loan
documents, shall be for the sole and exclusive benefit of the Master Servicer
and shall be subject to its withdrawal in accordance with Section 3.03(a),
3.03(f) or 3.05(a), as applicable. Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of the Servicing Accounts, the Reserve Accounts, the
Interest Reserve Account and the Certificate Account, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period, provided, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement,
if any default occurs in the making of a payment due under any Permitted
Investment, or if a default occurs in
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any other performance required under any Permitted Investment and the
Special Servicer or the Master Servicer fails to deposit any losses with respect
to such Permitted Investment pursuant to Section 3.06(b), the Trustee may and,
subject to Section 8.02, upon the request of Holders of Certificates entitled to
not less than 25% of the Voting Rights allocated to any Class, shall take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any
Investment Account, for purposes of the calculations hereunder, including,
without limitation, the calculation of the Available Distribution Amount, the
amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans and
(to the extent that the Trust Fund has an insurable interest) Companion Loans
including Specially Serviced Mortgaged Loans) and the Special Servicer (with
respect to REO Properties) shall, consistent with the Servicing Standard, cause
to be maintained for each Mortgaged Property all insurance coverage as is
required under the related Mortgage; provided that if and to the extent that any
such Mortgage permits the holder thereof any discretion (by way of consent,
approval or otherwise) as to the insurance coverage that the related Mortgagor
is required to maintain, the Master Servicer shall exercise such discretion in a
manner consistent with the Servicing Standard and subject to the terms of this
Section 3.07; and provided further that, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to exercise its reasonable best
efforts to obtain the required insurance coverage from Qualified Insurers and
required insurance coverage obtained by the Master Servicer shall be from
Qualified Insurers. The cost of any such insurance coverage obtained by either
the Master Servicer or the Special Servicer shall be a Servicing Advance to be
paid by the Master Servicer pursuant to Section 3.03. If not required under the
terms of the Mortgage or the Mortgage Loan Documents, the Majority Subordinate
Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties at the expense of the Majority Subordinate
Certificateholder. Subject to Section 3.17(a), the Special Servicer shall also
cause to be maintained for each REO Property no less insurance coverage than was
previously required of the Mortgagor under the related Mortgage; provided that
all such insurance shall be obtained from Qualified Insurers. All such insurance
policies maintained by the Master Servicer or the Special Servicer (i) shall
contain (if they insure against loss to property and do not relate to an REO
Property) a "standard" mortgagee clause, with loss payable to the Trustee or the
Master Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer
(in the case of insurance maintained in respect of REO Properties), on behalf of
the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice
to the insured party; (iv) shall include coverage in an amount not less than the
lesser of (x) the full replacement cost of the improvements securing a Mortgaged
Property or REO Property, as applicable, or (y) the outstanding principal
balance owing on the related Mortgage Loan or REO Loan, as applicable, and in
any event, the amount necessary to avoid the operation of any co-insurance
provisions; (v) shall include a replacement cost endorsement providing no
deduction for depreciation (unless such endorsement is not permitted under the
related Mortgage Loan documents); (vi) shall
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include such other insurance, including, to the extent available at commercially
reasonable rates, earthquake insurance, where applicable, as required under the
applicable Mortgage or other Mortgage Loan Documents; (vii) to the extent that
the Mortgage or other Mortgage Loan Documents specifically require terrorism
coverage or the Mortgage requires the related Mortgagor to carry "all risk"
coverage, shall include terrorism coverage, unless the failure to obtain such
terrorism coverage constitutes an Acceptable Insurance Default; and (viii) in
each case such insurance shall be issued by an insurer authorized under
applicable law to issue such insurance. Notwithstanding the foregoing, the
Special Servicer shall not be required to obtain, and shall not be in default
hereunder for failing to obtain, any insurance for an REO Property that was
previously required of the Mortgagor under the related Mortgage if (a) such
insurance is not available at any rate; (b) such insurance is not available from
a Qualified Insurer (provided that Special Servicer shall obtain such insurance
from the next highest rated insurer offering such insurance at commercially
reasonable rates); or (c) subject to the rights of and consultation with the
Controlling Class Representative, such insurance is not available at
commercially reasonable rates and the subject hazards are not commonly insured
against by prudent owners of similar real properties in similar locales (but
only by reference to such insurance that has been obtained by such owners at
then current market rates). Any amounts collected by the Master Servicer or the
Special Servicer under any such policies (other than amounts to be applied to
the restoration or repair of the related Mortgaged Property or REO Property or
amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Mortgage Loan
or a Companion Loan, or in the REO Account, subject to withdrawal pursuant to
Section 3.16(c), in the case of amounts received in respect of an REO Property.
Any cost incurred by the Master Servicer or the Special Servicer in maintaining
any such insurance shall not, for purposes hereof, including, without
limitation, calculating monthly distributions to Certificateholders, be added to
the unpaid principal balance of the related Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan or Companion Loan, so permit.
(b) If the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Mortgage Loans, the Companion Loans
and/or REO Properties that it is required to service and administer, then, to
the extent such policy (i) is obtained from a Qualified Insurer and (ii)
provides protection equivalent to the individual policies otherwise required,
the Master Servicer or the Special Servicer, as the case may be, shall
conclusively be deemed to have satisfied its obligation to cause hazard
insurance to be maintained on the related Mortgaged Properties and/or REO
Properties. In the event that the Special Servicer causes any REO Property to be
covered by such blanket policy, the incremental cost of such insurance
applicable to such REO Property (other than any minimum or standby premium
payable for such policy whether or not any REO Property is covered thereby)
shall be paid by the Master Servicer as a Servicing Advance. Such blanket policy
may contain a deductible clause (not in excess of a customary amount), in which
case the Master Servicer or the Special Servicer, as appropriate, shall, if
there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of Section
3.07(a), and there shall have been one or more losses that would have been
covered by such policy, promptly deposit into the Certificate Account from its
own funds the amount not otherwise payable under the blanket policy because
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of such deductible clause. The Master Servicer or the Special Servicer, as
appropriate, shall prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall
at all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified FNMA seller-servicer of multifamily mortgage loans, or in such other
form and amount as would not cause the qualification, downgrade or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for ten days' written notice to the Trustee prior to cancellation. The
Master Servicer and the Special Servicer shall each cause the Trustee to be an
additional loss payee on any policy currently in place or procured pursuant to
the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master
Servicer or Special Servicer, as the case may be (or in the case of the initial
Master Servicer and Special Servicer, their respective direct parent), are rated
at least "A" or the equivalent by all of the Rating Agencies (or such lower
rating as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies), such Person may self-insure with respect to the risks described in
this subsection.
SECTION 3.08 Enforcement of Alienation Clauses.
(a) Upon receipt of any request of a waiver in respect of a
due-on-sale or due-on-encumbrance provision, the Master Servicer shall promptly
forward such request to the
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Special Servicer. With respect to all Mortgage Loans, the Special Servicer, on
behalf of the Trustee as the mortgagee of record, shall, to the extent permitted
by applicable law, enforce the restrictions contained in the related Mortgage on
transfers or further encumbrances of the related Mortgaged Property and on
transfers of interests in the related Mortgagor, unless the Special Servicer
(after providing the Controlling Class Representative 12 Business Days notice of
such proposed action pursuant to Section 6.11 hereof, which notice shall be
given by the Special Servicer no later than three Business Days after receipt of
such request) has, subject to compliance with Section 6.11 hereof, determined,
consistent with the Servicing Standard and subject to compliance with the
provisions of Section 6.11 hereof, that waiver of such restrictions would be in
accordance with the Servicing Standard. The Special Servicer shall prepare a
written analysis relating to such request, make recommendations relating to such
request and conduct the "closing" and retain legal counsel if necessary to
document such request. Promptly after the Special Servicer (after providing the
Controlling Class Representative 12 Business Days notice of such proposed action
pursuant to Section 6.11, which notice shall be given by the Special Servicer no
later than three Business Days after receipt of such request) has made any such
determination, the Special Servicer shall deliver to the Trustee, the Master
Servicer, the Rating Agencies and each other party hereto an Officers'
Certificate setting forth the basis for such determination. The Special Servicer
shall not exercise any such waiver in respect of a due-on-encumbrance provision
of any Mortgage Loan (i) for which the aggregate of the Stated Principal Balance
of such Mortgage Loan and the Stated Principal Balance of all other Mortgage
Loans that are cross-collateralized, cross-defaulted or have been made to
Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are equal to or
greater than 2% of the aggregate Stated Principal Balance of all Mortgage Loans
or $20,000,000 or which is one of the ten largest Mortgage Loans as of the date
of the waiver (by Stated Principal Balance), without receiving prior written
confirmation from Xxxxx'x that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates and
(ii) for which (a) the aggregate of the Stated Principal Balance of such
Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that
are cross-collateralized, cross-defaulted or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, are greater than 2% of the
aggregate Stated Principal Balance of all Mortgage Loans or (b) is one of the
ten largest Mortgage loans as of the date of the waiver (by Stated Principal
Balance); and such Mortgage Loan has a Loan-to-Value Ratio that is greater than
85% and a Debt Servicer Coverage Ratio (calculated to include the additional
debt from any encumbrance) of 1.2x, without receiving a prior written
confirmation from S&P that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates.
The Special Servicer shall not exercise any such waiver in respect of a
due-on-sale provision of any Mortgage Loan (i) for which the aggregate of the
Stated Principal Balance of such Mortgage Loan and the Stated Principal Balance
of all other Mortgage Loans that are cross-collateralized, cross-defaulted or
have been made to Mortgagors affiliated with the Mortgagor on such Mortgage
Loan, are equal to or greater than 5% of the aggregate Stated Principal Balance
of all Mortgage Loans or $20,000,000 or (ii) which is one of the ten largest
Mortgage Loans as of the date of the waiver (by Stated Principal Balance),
without receiving prior written confirmation from the Rating Agencies that such
action would not result in a downgrading, qualification or withdrawal of any of
the ratings then assigned to the Certificates. With respect to a waiver of a
due-on-sale provision, in the event that such Mortgage Loan does not meet the
criteria set forth in the prior sentence, and the Mortgage Loan documents
contain a requirement for Rating Agency approval,
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the Special Servicer may waive such requirement without Rating Agency approval
in accordance with the Servicing Standard.
(b) Notwithstanding any other provisions of this Section 3.08,
the Master Servicer with respect to Mortgage Loans which are not Specially
Serviced Mortgage Loans (without the Special Servicer's consent) or the Special
Servicer with respect to Specially Serviced Mortgage Loans, as applicable, may
grant, without any Rating Agency confirmation as provided in paragraph (a)
above, a Mortgagor's request for consent to subject the related Mortgaged
Property to an easement or right-of-way for utilities, access, parking, public
improvements or another purpose, and may consent to subordination of the related
Mortgage Loan to such easement or right-of-way provided the Master Servicer or
the Special Servicer, as applicable, shall have determined in accordance with
the Servicing Standard that such easement or right-of-way shall not materially
interfere with the then-current use of the related Mortgaged Property, or the
security intended to be provided by such Mortgage, the related Mortgagor's
ability to repay the Mortgage Loan, or materially or adversely affect the value
of such Mortgaged Property or cause the Mortgage Loan to cease to be a qualified
mortgage loan for REMIC purposes.
(c) Within ninety (90) days of the Closing Date, with respect
to each of the Mortgage Loans covered by an environmental insurance policy, the
Master Servicer (or the Special Servicer in the case of a Specially Serviced
Mortgage Loan) shall notify the insurer under such environmental insurance
policy and take all other action necessary for the Trustee, on behalf of the
Certificateholders, to be an insured (and for the Master Servicer (or the
Special Servicer in the case of a Specially Serviced Mortgage Loan), on behalf
of the Trust Fund, to make claims) under such environmental insurance policy. In
the event that the Master Servicer (or the Special Servicer in the case of a
Specially Serviced Mortgage Loan) has actual knowledge of any event (an "Insured
Environmental Event") giving rise to a claim under any environmental insurance
policy in respect of any Mortgage Loan covered thereby, the Master Servicer (or
the Special Servicer in the case of a Specially Serviced Mortgage Loan) shall,
in accordance with the terms of such environmental insurance policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such environmental insurance policy in order to
realize the full value thereof for the benefit of the Certificateholders (and to
the extent consistent with the Servicing Standard, the Companion Holders). Any
legal fees, premiums or other out-of-pocket costs incurred in accordance with
the Servicing Standard in connection with any such claim under an environmental
insurance policy shall be paid by the Master Servicer and shall be reimbursable
to it as a Servicing Advance. With respect to each environmental insurance
policy that relates to one or more Mortgage Loans, the Master Servicer shall
review and familiarize itself with the terms and conditions relating to
enforcement of claims and shall monitor the dates by which any claim must be
made or any action must be taken under such policy to realize the full value
thereof for the benefit of the Certificateholders (and to the extent consistent
with the Servicing Standard, the Companion Holders) in the event the Master
Servicer has actual knowledge of an Insured Environmental Event giving rise to a
claim under such policy.
In the event that the Master Servicer (or the Special Servicer
in the case of a Specially Serviced Mortgage Loan) receives notice of any
termination of any environmental
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insurance policy that relates to one or more Mortgage Loans, the Master Servicer
(or the Special Servicer in the case of a Specially Serviced Mortgage Loan)
shall, within five Business Days after receipt of such notice, notify the
Special Servicer, the Controlling Class Representative, the Companion Holders
(in the case of an AB Mortgage Loan), the Rating Agencies and the Trustee of
such termination in writing. Upon receipt of such notice, the Master Servicer
with respect to non-Specially Serviced Mortgage Loans, and the Special Servicer
with respect to Specially Serviced Mortgage Loans, shall address such
termination in accordance with Section 3.07(a) in the same manner as it would
the termination of any other Insurance Policy required under the related
Mortgage Loan documents. Any legal fees, premiums or other out-of-pocket costs
incurred in accordance with the Servicing Standard in connection with a
resolution of such termination of an environmental insurance policy shall be
paid by the Master Servicer and shall be reimbursable to it as a Servicing
Advance.
SECTION 3.09 Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b)
through 3.09(d) and Section 6.11, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or exercise any power of sale
contained in the related Mortgage, obtain a deed-in-lieu of foreclosure, or
otherwise acquire title to the corresponding Mortgaged Property by operation of
law or otherwise in relation to such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale
or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in accordance with the Servicing
Standard and in its reasonable and good faith judgment taking into account, as
applicable, among other factors, the period and amount of any delinquency on the
affected Mortgage Loan, the occupancy level and physical condition of the
Mortgaged Property or REO Property, the state of the local economy, the
obligation to dispose of any REO Property within the time period specified in
Section 3.16(a) and the results of any appraisal obtained pursuant to the
following sentence, all such bids to be made in a manner consistent with the
Servicing Standard. If and when the Master Servicer or the Special Servicer
deems it necessary and prudent for purposes of establishing the fair market
value of any Mortgaged Property securing a Defaulted Mortgage Loan, whether for
purposes of bidding at foreclosure or otherwise, it may, at the expense of the
Trust Fund, have an appraisal performed with respect to such property by an
Independent Appraiser or other expert in real estate matters; which appraisal
shall take into account, as applicable, among other factors, the period and
amount of any delinquency on the affected Mortgage Loan, the occupancy level and
physical condition of the Mortgaged Property or REO Property, the state of the
local economy and the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a), including without limitation, any
environmental, engineering or other third party reports available, and other
factors that a prudent real estate appraiser would consider.
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With respect to each Required Appraisal Mortgage Loan, the
Special Servicer will be required to obtain a Required Appraisal (or with
respect to any Mortgage Loan with an outstanding principal balance, net of
related unreimbursed advances of principal, of less than $2,000,000, an internal
valuation performed by the Special Servicer) within 60 days of a Mortgage Loan
becoming a Required Appraisal Mortgage Loan (unless an appraisal meeting the
requirements of a Required Appraisal was obtained for such Required Appraisal
Mortgage Loan within the prior 12 months and the Special Servicer has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property in which case such appraisal may be a letter update of the Required
Appraisal) and thereafter shall obtain a Required Appraisal (or with respect to
any Mortgage Loan with an outstanding principal balance less than $2,000,000, an
internal valuation performed by the Special Servicer) once every 12 months (or
sooner if the Special Servicer has actual knowledge of a material adverse change
in the condition of the related Mortgaged Property) if such Mortgage Loan
remains a Required Appraisal Mortgage Loan. The Special Servicer will deliver a
copy of each Required Appraisal (or letter update or internal valuation) to the
Master Servicer, the Controlling Class Representative and the Trustee within 10
Business Days of obtaining such Required Appraisal (or letter update or internal
valuation). Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance the cost of such Required Appraisal; provided, however,
that such expense will be subject to reimbursement to the Master Servicer as a
Servicing Advance out of the Certificate Account pursuant to Section 3.05(a)(vi)
and 3.05(a)(vii).
Notwithstanding the foregoing, in no event shall the Master
Servicer or the Special Servicer obtain an appraisal of a Companion Loan
pursuant to this Section 3.09(a) to the extent the related AB Mortgage Loan has
been paid in full.
(b) The Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion
of Counsel (the cost of which may be withdrawn from the Certificate
Account pursuant to Section 3.05(a)) to the effect that the holding
of such personal property as part of the Trust Fund (to the extent
not allocable to a Companion Loan) will not cause the imposition of
a tax on any of REMIC I or REMIC II under the REMIC Provisions or
cause either of REMIC I or REMIC II to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09, neither the Master Servicer nor the Special Servicer shall, on behalf of
the Trustee, obtain title to a Mortgaged Property by deed in lieu of foreclosure
or otherwise, or take any other action with respect to any Mortgaged Property,
if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, be considered to hold title to, to be a "mortgagee-in-possession" of,
or to be an "owner" or "operator" of such Mortgaged Property within the meaning
of CERCLA or any comparable law (a "potentially
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responsible party"), unless (as evidenced by an Officers' Certificate to such
effect delivered to the Trustee that shall specify all of the bases for such
determination) the Special Servicer has previously determined in accordance with
the Servicing Standard, and based on an Environmental Assessment of such
Mortgaged Property performed by an Independent Person who regularly conducts
Environmental Assessments and performed within six months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee, the Controlling Class Representative, the
Master Servicer and, in the case of the Companion Loans, each of the Companion
Holders), that:
(i) the Mortgaged Property is in compliance with
applicable environmental laws and regulations or, if not, that it
would maximize the recovery to the Certificateholders on a present
value basis (the relevant discounting of anticipated collections
that will be distributable to Certificateholders to be performed at
the related Net Mortgage Rate) to acquire title to or possession of
the Mortgaged Property and to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at
the Mortgaged Property relating to the use, management or disposal
of Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could reasonably be expected to be required, that it would maximize
the recovery to the Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related
Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions with respect to the
affected Mortgaged Property.
The Special Servicer shall undertake, in good faith,
reasonable efforts to make the determination referred to in the preceding
paragraph and may conclusively rely on the Environmental Assessment referred to
above in making such determination. The cost of any such Environmental
Assessment, as well as the cost of any remedial, corrective or other further
action contemplated by clause (i) and/or clause (ii) of the preceding paragraph
shall be at the expense of the Trust Fund (except to the extent that such
Additional Trust Fund Expense is payable out of the proceeds of any Companion
Loan pursuant to the related Intercreditor Agreement and this Agreement and any
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full); and if any such Environmental Assessment so warrants, the Special
Servicer shall perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied, the cost of which
shall be at the expense of the Trust Fund.
(d) If the environmental testing contemplated by Section
3.09(c) above establishes that any of the conditions set forth in clauses (i)
and (ii) thereof has not been satisfied with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan and there is no breach of a representation or
warranty requiring repurchase under the Xxxxxxx Mortgage Loan Purchase Agreement
or the Wachovia Mortgage Loan Purchase Agreement, as applicable, the Special
Servicer shall take such action as is in accordance with the Servicing Standard
(other
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than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided that, if such
Mortgage Loan has a then outstanding principal balance of greater than $1
million, then prior to the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage, (i) the Special Servicer shall
have notified the Rating Agencies, the Trustee the Controlling Class
Representative and the Master Servicer in writing of its intention to so release
all or a portion of such Mortgaged Property and the bases for such intention,
(ii) the Trustee shall have notified the Certificateholders in writing of the
Special Servicer's intention to so release all or a portion of such Mortgaged
Property and (iii) the Holders of Certificates entitled to a majority of the
Voting Rights shall have consented to such release within 30 days of the
Trustees's distributing such notice (failure to respond by the end of such
30-day period being deemed consent).
(e) The Special Servicer shall report to the Master Servicer,
the Controlling Class Representative and the Trustee and, in the case of the
Companion Loans, each of the Companion Holders, monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a Defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) thereof has not been
satisfied, in each case until the earlier to occur of satisfaction of all such
conditions and release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Master Servicer shall, with the reasonable cooperation
of the Special Servicer, prepare and file information returns with respect to
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to any Mortgaged Property required by Sections
6050J and 6050P of the Code and each year deliver to the Trustee an Officers'
Certificate stating that such reports have been filed. Such reports shall be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination in respect
of any Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate (together with the
basis and back-up documentation for the determination) delivered to the Trustee,
the Controlling Class Representative and the Master Servicer no later than the
third Business Day following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the
Special Servicer shall deliver to it and the related Sub-Servicer any other
information and copies of any other documents in its possession with respect to
a Specially Serviced Mortgage Loan or the related Mortgaged Property.
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SECTION 3.10 Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the
receipt by the Master Servicer of a notification that payment in full shall be
escrowed in a manner customary for such purposes, the Master Servicer shall
promptly notify the Trustee in writing, who shall release or cause the related
Custodian to release, by a certification (which certification shall be in the
form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee or related Custodian to the
Master Servicer or the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period
(but no less than three Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or
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the Special Servicer. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan), the
Radisson Companion Loan, the TRW Companion Loan and each REO Loan. As to each
such Mortgage Loan and REO Loan, and, subject to the terms of the related
Intercreditor Agreement with respect to the relevant Loan Pair, the Radisson
Companion Loan and the TRW Companion Loan, the Master Servicing Fee shall accrue
at the related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Mortgage Loan or
Companion Loan or deemed to be due on such REO Loan is computed and calculated
on the basis of a 360-day year consisting of twelve 30-day months (or, in the
event of a Principal Prepayment in full or other Liquidation Event with respect
to a Mortgage Loan, such Companion Loan or an REO Loan, on the basis of the
actual number of days to elapse from and including the related Due Date to but
excluding the date of such Principal Prepayment or Liquidation Event in a month
consisting of 30 days). The Master Servicing Fee with respect to any Mortgage
Loan, the Radisson Companion Loan, the TRW Companion Loan or any REO Loan shall
cease to accrue if a Liquidation Event occurs in respect thereof. Earned but
unpaid Master Servicing Fees shall be payable monthly on a loan-by-loan basis,
from payments of interest on each Mortgage Loan, the Radisson Companion Loan or
the TRW Companion Loan, as applicable, and REO Revenues allocable as interest on
each REO Loan. The Master Servicer shall be entitled to recover unpaid Master
Servicing Fees in respect of any Mortgage Loan, the Radisson Companion Loan, the
TRW Companion Loan or any REO Loan out of that portion of related Insurance
Proceeds or Liquidation Proceeds allocable as recoveries of interest, to the
extent permitted by Section 3.05(a)(iii). The right to receive the Master
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
(b) Additional servicing compensation in the form of: (i) one
hundred percent of all late payment charges, application fees, consent fees and
defeasance fees paid by the related Mortgagor, Penalty Interest, modification
fees for Mortgage Loan or Companion Loan modifications made by the Master
Servicer pursuant to Section 3.20(i), charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds and any
similar fees (excluding Prepayment Premiums or Yield Maintenance Charges), in
each case to the extent actually paid by a Mortgagor with respect to a Mortgage
Loan or Companion Loan and accrued during the time that such Mortgage Loan or
Companion Loan was not a Specially Serviced Mortgage Loan, provided that the
foregoing shall be subject to the terms of the related Intercreditor Agreement
with respect to each Loan Pair in terms of rights to payment and priority of
payment of late payment charges and Penalty Interest, and (ii) fifty percent
(50%) of any assumption fee to the extent actually paid by a Mortgagor with
respect to any Mortgage Loan or Companion Loan that is not a Specially Serviced
Mortgage Loan, may be retained by the Master
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Servicer and are not required to be deposited in the Certificate Account;
provided that the Master Servicer's right to receive late payment charges and
Penalty Interest pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay interest on Advances or Additional
Trust Fund Expenses as provided in Sections 3.03(d) and 4.03(d). Penalty
Interest or late payment charges in respect of any Mortgage Loan which has
accrued during the period when the related Mortgage Loan is not a Specially
Serviced Mortgage Loan shall be additional compensation to the Master Servicer
even if collected during the period when the related Mortgage Loan is a
Specially Serviced Mortgaged Loan, provided that Penalty Interest and late
payment charges collected during the period such Mortgage Loan is a Specially
Serviced Mortgage Loan shall be divided between the Master Servicer and the
Special Servicer pro rata based on the amounts which such Penalty Interest and
late payment charges accrued and owing to the Master Servicer and the Special
Servicer provided that the foregoing shall be subject to the terms of the
related Intercreditor Agreement with respect to each Loan Pair in terms of
rights to payment and priority of payment of late payment charges and Penalty
Interest. The Master Servicer shall also be entitled to additional servicing
compensation in the form of (i) Prepayment Interest Excesses (after deduction of
the amounts required to be deposited by the Master Servicer in the Certificate
Account for the related Distribution Date pursuant to Section 3.19(a) in
connection with Prepayment Interest Shortfalls); (ii) interest or other income
earned on deposits in the Certificate Account and the Interest Reserve Account,
in accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to each such account for each Collection Period),
and (iii) to the extent not required to be paid to any Mortgagor under
applicable law or the terms of the related Mortgage Loan or Companion Loan, any
interest or other income earned on deposits in the Reserve Accounts and
Servicing Accounts maintained thereby. The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers and the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, and the Master Servicer shall not be entitled to reimbursement therefor
except as expressly provided in this Agreement. The Master Servicer shall not
waive or agree to any discount of any portion of assumption fees to which the
Special Servicer is entitled.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan (except that no Special Servicing Fee
shall accrue on the TRW Mortgage Loan if it becomes a Specially Serviced
Mortgage Loan) and each REO Loan. As to each Specially Serviced Mortgage Loan
and REO Loan, the Special Servicing Fee shall accrue at the Special Servicing
Fee Rate and on the same principal amount respecting which the related interest
payment due on such Specially Serviced Mortgage Loan or deemed to be due on such
REO Loan is computed and calculated on the basis of a 360-day year consisting of
twelve 30-day months (or, in the event of a Principal Prepayment in full or
other Liquidation Event with respect to a Mortgage Loan or REO Loan, on the
basis of the actual number of days to elapse from and including the related Due
Date to but excluding the date of such Principal Prepayment or Liquidation Event
in a month consisting of 30 days). The Special Servicing Fee with respect to any
Specially Serviced Mortgage Loan or REO Loan shall cease to accrue as of the
date a Liquidation Event occurs in respect thereof or it becomes a Corrected
Mortgage Loan. Earned but unpaid Special Servicing Fees shall be payable monthly
out of general collections on the
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Mortgage Loans, Companion Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage
Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
collection of interest (other than Additional Interest and Penalty Interest) and
principal received on such Mortgage Loan or Companion Loan for so long as it
remains a Corrected Mortgage Loan (net of any portion of such collection payable
or reimbursable to the Master Servicer, the Trustee or the Fiscal Agent for any
related unpaid or unreimbursed Master Servicing Fees and/or Advances) received
on such Mortgage Loan or the Radisson Companion Loan for so long as it remains a
Corrected Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage
Loan will cease to be payable if a Servicing Transfer Event occurs with respect
thereto or if the related Mortgaged Property becomes an REO Property; provided
that a new Workout Fee would become payable if and when such Mortgage Loan and,
if applicable, Companion Loan, again became a Corrected Mortgage Loan. If the
Special Servicer is terminated or resigns, it will retain the right to receive
any and all Workout Fees payable with respect to any Specially Serviced Mortgage
Loan that became a Corrected Mortgage Loan during the period that it acted as
Special Servicer and remained a Corrected Mortgage Loan at the time of its
termination or resignation or if the Special Servicer resolved the circumstances
and/or conditions (including by way of a modification of the related Mortgage
Loan or Companion Loan documents) causing the Mortgage Loan or Companion Loan to
be a Specially Serviced Loan, but the Mortgage Loan or Companion Loan had not as
of the time the Special Servicer is terminated or resigns become a Corrected
Mortgage Loan because the related borrower had not made three consecutive
monthly debt service payments (but had made the most recent monthly debt service
payment prior to the termination of the Special Servicer) and subsequently
becomes a Corrected Mortgage Loan as a result of making such three consecutive
payments. The successor Special Servicer will not be entitled to any portion of
those Workout Fees.
In addition, with respect to each Specially Serviced Mortgage
Loan and REO Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
(but in the case of a Companion Loan, only to the extent expressly provided for
in the related Intercreditor Agreement) payable out of, and calculated by
application of the Principal Recovery Fee Rate to, all amounts (whether in the
form of payments of Liquidation Proceeds or REO Revenues) received in respect of
such Mortgage Loan or Companion Loan (or, in the case of an REO Loan, in respect
of the related REO Property) and allocable as a recovery of principal, interest
(other than Additional Interest and Penalty Interest) and expenses in accordance
with Section 3.02(b) or the definition of "REO Loan", as applicable; provided
that no Principal Recovery Fee shall be payable in connection with, or out of
(i) Insurance Proceeds and (ii) Liquidation Proceeds resulting from receipt of
condemnation proceeds or the purchase of any Mortgage Loan or REO Property by a
Mortgage Loan Seller pursuant to the Xxxxxxx Mortgage Loan Purchase Agreement or
the Wachovia Mortgage Loan Purchase Agreement, by the Majority Subordinate
Certificateholder, the Companion Holder or the Special Servicer pursuant to
Section 3.18(c), Section 3.18(e), Section 3.18(h), Section 3.18(m) or Section
3.26(d) or by the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01; and provided further
that no
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Principal Recovery Fee shall be payable (i) in connection with a Periodic
Payment received in connection with such Mortgage Loan or (ii) to the extent a
Workout Fee is payable concerning the Liquidation Proceeds.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout Fee and the Principal Recovery Fee may not be transferred in
whole or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of: (i) all
late payment charges, Penalty Interest and assumption application fees received
on or with respect to Specially Serviced Mortgage Loans actually collected that
accrued during the time that the related Mortgage Loan was a Specially Serviced
Mortgage Loan, subject to Section 3.11(b), (ii) one-hundred percent (100%) of
any assumption fee to the extent actually paid by a Mortgagor with respect to
any Specially Serviced Mortgage Loan and fifty percent (50%) of any assumption
fee to the extent actually paid by a Mortgagor with respect to any non-Specially
Serviced Mortgage Loan, and (iii) modification fees collected on all Mortgage
Loans (other than modifications made by the Master Servicer pursuant to Section
3.20(i)), in each case to the extent actually paid by the related Mortgagor,
shall be retained by the Special Servicer or promptly paid to the Special
Servicer by the Master Servicer and shall not be required to be deposited in the
Certificate Account except in the case of the Burbank Empire Center Mortgage
Loan, provided that the Special Servicer's right to receive late payment charges
and Penalty Interest pursuant to clause (i) above shall be limited to the
portion of such items that have not been applied to pay interest on Advances or
Additional Trust Fund Expenses and property inspection costs in respect of the
related Mortgage Loan as provided in Sections 3.03(d), 3.12(a) and 4.03(d) and
shall be subject to the allocations of such amounts in the related Intercreditor
Agreement. The Special Servicer shall also be entitled to additional servicing
compensation in the form of: (i) interest or other income earned on deposits in
the REO Account, if established, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period); and (ii) to the extent not required to be
paid to any Mortgagor under applicable law, any interest or other income earned
on deposits in the Servicing Accounts maintained by the Special Servicer. The
Special Servicer shall be required to pay out of its own funds all general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in Section 3.05(a) if and to
the extent such expenses are not payable directly out of the Certificate Account
or the REO Account. The Special Servicer shall not waive or agree to any
discount of any portion of assumption fees to which the Master Servicer is
entitled.
SECTION 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after a related Mortgage Loan (i) becomes a Specially Serviced Mortgage Loan or
(ii) the related Debt Service Coverage Ratio set forth in the Comparative
Financial Status Report is below 1.0x, provided that such expense shall be
reimbursable first out of Penalty Interest and late payment charges otherwise
payable to the
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Special Servicer and the Master Servicer and received in the Collection Period
during which such inspection related expenses were incurred, then as an
Additional Trust Fund Expense (except to the extent that such Additional Trust
Fund Expense is payable out of the proceeds of any Companion Loan pursuant to
the related Intercreditor Agreement and this Agreement and any inspection
occurring after the related AB Mortgage Loan has been paid in full). Each of the
Master Servicer for each Mortgage Loan other than a Specially Serviced Mortgage
Loan or REO Loan and the Special Servicer for each Specially Serviced Mortgage
Loan and REO Loan shall at its expense perform or cause to be performed an
inspection of all the Mortgaged Properties at least once per calendar year (or,
in the case of each Mortgaged Property securing a Mortgage Loan (other than a
Specially Serviced Mortgage Loan) with a then current principal balance (or
allocated loan amount) of less than $2,000,000 at the time of such inspection,
every other calendar year) beginning in 2003. The Special Servicer and the
Master Servicer shall each prepare (and, in the case of the Special Servicer,
shall deliver to the Master Servicer) a written report of each such inspection
performed by it that sets forth in detail the condition of the Mortgaged
Property and that specifies the existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which it is aware, (ii) any change in
the condition or value of the Mortgaged Property that it, in its reasonable
judgment, considers material, or (iii) any visible waste committed on the
Mortgaged Property. The Master Servicer shall deliver such reports to the
Trustee within 45 days of the related inspection and the Trustee shall, subject
to Section 3.15, make copies of all such inspection reports available for review
by Certificateholders and Certificate Owners during normal business hours at the
offices of the Trustee at all times after Trustee's receipt thereof. Upon
written request and at the expense of the requesting party, the Trustee shall
deliver copies of any such inspection reports to Certificateholders and
Certificate Owners. 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 loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer obtains the approval of the Master Servicer
prior to such inspection, and provides a copy of such inspection to the Master
Servicer; and provided, further that the Master Servicer and the Special
Servicer shall not both inspect a Mortgaged Property that is not securing a
Specially Serviced Mortgage Loan in the same calendar year. If the Special
Servicer performs such inspection, such inspection shall satisfy the Master
Servicer's inspection obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master
Servicer shall make such inquiry of any Mortgagor under any related Mortgage
Loan as the Special Servicer may reasonably request.
The Special Servicer shall, promptly after a Mortgage Loan
becomes a Specially Serviced Mortgage Loan, give written notice to the Master
Servicer, the Controlling Class Representative and the Trustee which shall
include an explanation as to the reasons such Mortgage Loan became a Specially
Serviced Mortgage Loan and the Special Servicer's plan for servicing such
Mortgage Loan, a copy of which notice shall be provided by the Trustee to each
Rating Agency and upon request to each Certificateholder and the Depositor.
(b) Not later than 2:00 p.m. (New York City time) on the
second Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties
providing the required information as of the end of the preceding
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calendar month: (i) a CMSA Property File; (ii) a Comparative Financial Status
Report and (iii) CMSA Financial File. Not later than 5:00 p.m. (New York City
time) on the first Business Day following each Determination Date, the Special
Servicer shall deliver or cause to be delivered to the Master Servicer the
following reports with respect to the Mortgage Loans (and, if applicable, the
related REO Properties) (or, as to clause (iv) below, only with respect to
Specially Serviced Mortgage Loans) providing the required information as of such
Determination Date: (i) a Historical Liquidation Report; (ii) a Historical Loan
Modification Report; (iii) an REO Status Report, and (iv) a Delinquent Loan
Status Report. Not later than 4:00 p.m. (New York City time) on the second
Business Day of each calendar month, the Special Servicer shall deliver or cause
to be delivered to the Master Servicer (in electronic format acceptable to the
Master Servicer and the Special Servicer) an Interim Delinquent Loan Status
Report.
(c) Not later than 4:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee (in electronic format acceptable to the
Master Servicer and the Trustee) (A) the most recent Historical Loan
Modification Report, Historical Liquidation Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CMSA
Property File, a Comparative Financial Status Report and CMSA Financial File,
each with the required information as of the end of the preceding calendar month
(in each case combining the reports prepared by the Special Servicer and the
Master Servicer); (C) a Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (D) a Watch List
Report with the required information as of such Determination Date and (E) an
Updated Collection Report. Not later than 4:00 p.m. (New York City time) on the
third Business Day of each calendar month, the Master Servicer shall deliver or
cause to be delivered to the Trustee (in electronic format acceptable to the
Master Servicer and the Trustee) an Interim Delinquent Loan Status Report.
(d) The Special Servicer will deliver to the Master Servicer
the reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12 in
an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Trustee with respect to
the reports set forth in Section 3.12(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may,
absent manifest error, conclusively rely on the CMSA Loan Periodic Update File
to be provided by the Master Servicer pursuant to Section 4.02(b). In the case
of information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information is based on
reports to be provided by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d) and, to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by this Section 3.12 to the
extent caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) and this Section 3.12(d) of this Agreement.
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The Special Servicer, in the case of any Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer, in the case of all other
Mortgage Loans shall each consistent with the Servicing Standard, endeavor to
obtain quarterly and annual operating statements, budgets and rent rolls with
respect to the related Mortgage Loans and REO Properties, which efforts shall
include in the case of Mortgage Loans, a letter sent to the related Mortgagor
each quarter (followed up with telephone calls) requesting such quarterly and
annual operating statements, budgets and rent rolls until they are received to
the extent such action is consistent with applicable law and the related
Mortgage Loan documents.
The Special Servicer shall promptly following receipt, deliver
copies of the operating statements, budgets and rent rolls received or obtained
by it to the Master Servicer (in an electronic format reasonably acceptable to
the Master Servicer), and the Master Servicer shall deliver copies of the
operating statements, budgets and rent rolls received or obtained by it to the
Rating Agencies, the Trustee, the Special Servicer and the Controlling Class
Representative in each case and in the case of Loan Pairs, the Companion Holder
(other than the Rating Agencies, the Controlling Class Representative and the
Companion Holder which shall be sent copies within 30 days following the Master
Servicer's receipt) upon request.
Within 30 days after receipt by the Master Servicer or the
Special Servicer of any annual operating statements with respect to any
Mortgaged Property or REO Property, as applicable, each of the Master Servicer
and the Special Servicer shall prepare or update and, with respect to any NOI
Adjustment Worksheet prepared or updated by the Special Servicer, forward to the
Master Servicer, an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as an exhibit).
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be, but in no event less frequently than annually by June 30th of each
year. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Trustee, the Special Servicer or the Controlling Class
Representative in each case upon request.
SECTION 3.13 Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall
deliver to the Trustee, the Underwriters, the Controlling Class Representative
and the Rating Agencies, and, in the case of the Special Servicer, to the Master
Servicer, on or before April 30 of each year, beginning April 30, 2003, an
Officers' Certificate stating, as to each signer thereof, that (i) a review of
the
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activities of the Master Servicer or the Special Servicer, as the case may be,
during the preceding calendar year and of its performance under this Agreement
has been made under such officer's supervision, (ii) to the best of such
officer's knowledge, based on such review, the Master Servicer or the Special
Servicer, as the case may be, has fulfilled all of 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 and (iii) the Master
Servicer or the Special Servicer, as the case may be, has received no notice
regarding qualification, or challenging the status, of REMIC I or REMIC II as a
REMIC under the REMIC Provisions or of the Grantor Trust as a "Grantor Trust"
for income tax purposes under the Grantor Trust Provisions from the Internal
Revenue Service or any other governmental agency or body or, if it has received
any such notice, specifying the details thereof. The Master Servicer and Special
Servicer shall deliver a copy of such Officer's Certificate to the Depositor.
SECTION 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2003,
each of the Master Servicer and the Special Servicer at its expense shall cause
a firm of Independent public accountants (which may also render other services
to the Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee,
Underwriters, Rating Agencies, Controlling Class Representative, Depositor and,
in the case of the Special Servicer, to the Master Servicer, to the effect that
such firm has examined the servicing operations of the Master Servicer or the
Special Servicer, as the case may be, for the previous calendar year (except
that the first such report shall cover the period from the Closing Date through
December 31, 2002) and that, on the basis of such examination, conducted
substantially in compliance with USAP, such firm confirms that the Master
Servicer or the Special Servicer, as the case may be, complied with the minimum
servicing standards identified in USAP, in all material respects, except for
such significant exceptions or errors in records that, in the opinion of such
firm, the USAP requires it to report. In rendering such statement, such firm may
rely, as to matters relating to direct servicing of mortgage loans by
Sub-Servicers, upon comparable statements for examinations conducted
substantially in compliance with the Uniform Single Audit Program for Mortgage
Bankers (rendered within one year of such statement) of independent public
accountants with respect to the related Sub-Servicer.
SECTION 3.15 Access to Certain Information.
(a) Upon ten days prior written notice, the Master Servicer
(with respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below), the Special Servicer (with respect to the items in clauses (d), (e),
(f), (g), (h) and (i) below) and the Trustee (with respect to the items in
clause (b) and (i) below and to the extent any other items are in its
possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of the
Trustee, at its Corporate Trust Office), during normal business hours, or send
to the requesting party, such party having been certified to the Trustee or the
Master Servicer, as applicable, in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any Person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master
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Servicer or the Special Servicer, as the case may be, as a prospective
transferee of any Certificate or interest therein, the Trustee, the Rating
Agencies, the Underwriters and anyone specified thereby and, with respect to any
Loan Pair, the related Companion Holder and the Depositor originals or copies of
the following items: (a) this Agreement and any amendments thereto, (b) all
Distribution Date Statements delivered to holders of the relevant Class of
Certificates since the Closing Date and all reports, statements and analyses
delivered by the Master Servicer since the Closing Date pursuant to Section
3.12(c), (c) all Officers' Certificates delivered by the Master Servicer or the
Special Servicer since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Master Servicer in respect of itself or
the Special Servicer since the Closing Date as described in Section 3.14, (e)
the most recent property inspection report prepared by or on behalf of the
Master Servicer in respect of each Mortgaged Property and any Environmental
Assessments prepared pursuant to Section 3.09, (f) the most recent Mortgaged
Property annual operating statements and rent roll, if any, collected by or on
behalf of the Master Servicer, (g) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Special Servicer
and the Asset Status Report prepared pursuant to Section 3.21(d), (h) the
Servicing File relating to each Mortgage Loan and (i) any and all Officers'
Certificates and other evidence delivered by the Master Servicer or the Special
Servicer, as the case may be, to support its determination that any Advance was,
or if made, would be, a Nonrecoverable Advance including appraisals affixed
thereto and any Required Appraisal prepared pursuant to Section 3.09(a). Copies
of any and all of the foregoing items will be available from the Master
Servicer, the Special Servicer or the Trustee, as the case may be, upon request
and shall be provided to any of the Rating Agencies at no cost pursuant to their
reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, or with
respect to the Controlling Class Representative, in connection with providing
access to or copies of any items in accordance with this Agreement, the Trustee
or the Master Servicer, as applicable, shall require: (a) in the case of
Certificate Owners and the Controlling Class Representative, a confirmation
executed by the requesting Person substantially in the form of Exhibit V-1
hereto (or such other form as may be reasonably acceptable to the Trustee or the
Master Servicer, as applicable) generally to the effect that such Person is a
beneficial holder of Book-Entry Certificates, or a representative of a
beneficial holder of Book-Entry Certificates, and, subject to the last sentence
of this paragraph, will keep such information confidential (except that such
Certificate Owner and the Controlling Class Representative may provide such
information to any other Person that holds or is contemplating the purchase of
any Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential); and (b) in the case of a prospective
purchaser of a Certificate or an interest therein, confirmation executed by the
requesting Person substantially in the form of Exhibit V-2 hereto (or such other
form as may be reasonably acceptable to the Trustee or the Master Servicer, as
applicable) generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information for use
in evaluating a possible investment in Certificates and, subject to the last
sentence of this paragraph, will otherwise keep such information confidential.
The Holders of the Certificates, by their acceptance thereof, and the
Controlling Class Representative, by its acceptance of its appointment, will be
deemed to have agreed, subject to the last sentence of this paragraph, to keep
such information confidential (except that any Holder may provide such
information
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obtained by it to any other Person that holds or is contemplating the purchase
of any Certificate or interest therein, provided that such other Person confirms
in writing such ownership interest or prospective ownership interest and agrees
to keep such information confidential) and agrees not to use such information in
any manner that would violate federal, state or local securities laws.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Trustee or the Master Servicer,
as applicable, pursuant to this Section 3.15 that has previously been made
available without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with the Commission,
and the Trustee or the Master Servicer, as applicable, shall not require either
of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 3.15 that has
previously been made available without a password via the Trustee's or the
Master Servicer's, as applicable, Internet Website or has previously been filed
with the Commission.
Each of the Master Servicer and the Special Servicer shall
afford to the Trustee, the Rating Agencies and the Depositor, and to the OTS,
the FDIC, the Federal Reserve Board and any other banking or insurance
regulatory authority that may exercise authority over any Certificateholder,
access to any records regarding the Mortgage Loans and the servicing thereof
within its control, except to the extent it is prohibited from doing so by
applicable law or contract or to the extent such information is subject to a
privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded only upon reasonable prior
written request and during normal business hours at the offices of the Master
Servicer or the Special Servicer, as the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Websites, and (ii) as
a convenience for interested parties this Agreement on their respective Internet
Websites. In addition, the Trustee shall make available each month, on each
Distribution Date, the Unrestricted Servicer Reports, the CMSA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond File, and the CMSA
Collateral Summary File to any interested party on its Internet Website. The
Trustee shall, upon request, make available each month, on each Distribution
Date, (i) the Restricted Servicer Reports, and (ii) the CMSA Property File and
the CMSA Financial File to any Privileged Person via the Trustee's Internet
Website with the use of a password (or other comparable restricted access
mechanism) provided by the Trustee. The Trustee shall make available each month,
on the Distribution Date, the Interim Delinquent Loan Status Report to any
interested party on its Internet Website.
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The Master Servicer may, but is not required to, make
available each month via its Internet Website (i) to any interested party, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, and the CMSA Loan
Periodic Update File, and (ii) to any Privileged Person, with the use of a
password provided by the Master Servicer, the Restricted Servicer Reports, the
CMSA Financial File and the CMSA Property File. Any (y) Restricted Servicer
Report or Unrestricted Servicer Report (other than the Interim Delinquent Loan
Status Report) that is not available on the Master Servicer's Internet Website
as described in the immediately preceding sentence by 5:00 p.m. (New York City
time) on the related Distribution Date, and (z) Interim Delinquent Loan Status
Report that is not available on the Master Servicer's Internet Website as
described in the immediately preceding sentence by 5:00 p.m. (New York City
time) on the third Business Day of each calendar month shall be provided (in
electronic format, or if electronic mail is unavailable, by facsimile) by the
Master Servicer, upon request, to any Person otherwise entitled to access such
report on the Master Servicer's Internet Website.
In connection with providing access to the Trustee's Internet
Website or the Master Servicer's Internet Website, the Trustee or the Master
Servicer, as applicable, may require registration and the acceptance of a
disclaimer.
If three or more Holders or the Controlling Class
Representative (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 Trustee, 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 Trustee shall,
within five Business Days after the receipt of such application, send, at the
Applicants' expense, the written communication proffered by the Applicants to
all Certificateholders at their addresses as they appear in the Certificate
Register.
(c) The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. The Trustee shall
not be liable for the dissemination of information in accordance with this
Section 3.15. The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on the Trustee's Website and assumes no responsibility therefor. In
addition, the Trustee, the Master Servicer and the Special Servicer may disclaim
responsibility for any information distributed by the Trustee, the Master
Servicer or the Special Servicer, respectively, for which it is not the original
source.
SECTION 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and if applicable, the Companion Holder, as their
interests shall appear. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property as soon as practicable in accordance with the Servicing
Standard, but prior to the end of the third year following the calendar year in
which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code,
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unless the Special Servicer either (i) applies for, more than sixty days prior
to the end of such third succeeding year, and is granted an extension of time
(an "REO Extension") by the Internal Revenue Service to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
the Special Servicer and the Master Servicer, to the effect that the holding by
REMIC I of such REO Property subsequent to the end of such third succeeding year
will not result in the imposition of taxes on "prohibited transactions" (as
defined in Section 860F of the Code) on either of REMIC I or REMIC II or cause
either of REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its obtaining the REO Extension contemplated by clause (i) of
the second preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the second preceding sentence, shall first be
payable from the related REO Account to the extent of available funds and then
be a Servicing Advance by the Master Servicer.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders, and if applicable, the Companion Holders,
as their interests shall appear, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property within 2 Business Days of
receipt. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
written notice to the Trustee and the Master Servicer of the location of the REO
Account when first established and of the new location of the REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property (including any monthly reserve or
escrow amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit into
the Certificate Account or deliver to the Master Servicer or such other Person
as may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that, in addition to the Impound Reserve,
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the Special Servicer may retain in the REO Account such portion of proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of the
related REO Property (including, without limitation, the creation of a
reasonable reserve for repairs, replacements, necessary capital improvements and
other related expenses).
(d) The Special Servicer shall keep and maintain separate
records, on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to the REO Account as is reasonably requested by the Master
Servicer.
SECTION 3.17 Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property,
the Special Servicer shall review the operation of such Mortgaged Property and
consult with the Trustee, or any person appointed by the Trustee to act as tax
administrator to determine the nature of the income that would be derived from
such property if it were acquired by the Trust Fund. If the Special Servicer
determines from such review that:
(i) None of the income from Directly Operating such
Mortgaged Property would be subject to tax as "net income from
foreclosure property" within the meaning of the REMIC Provisions and
Section 857(b)(4)(B) of the Code (such tax referred to herein as an
"REO Tax"), and the Special Servicer does not engage in any of the
activities described in the definition of "Directly Operate" that
would cause the REO Property to cease to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code, then
such Mortgaged Property may be Directly Operated by the Special
Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an
REO Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services
by an Independent Contractor with respect to such property, or
another method of operating such property would not result in income
subject to an REO Tax, then the Special Servicer may (provided, that
in the good faith and reasonable judgment of the Special Servicer,
such alternative is commercially feasible and would result in a
greater net recovery on a present value basis than earning income
subject to an REO Tax) acquire such Mortgaged Property as REO
Property and so lease or manage such REO Property; or
(iii) It is reasonable to believe that Directly
Operating such property as REO Property could result in income
subject to an REO Tax and that such method of operation is
commercially feasible and would result in a greater net recovery on
a present value basis than leasing or other method of operating the
REO Property that would not incur an REO Tax, the Special Servicer
shall deliver to the REMIC Administrator, in writing, a proposed
plan (the "Proposed Plan") to manage such property as REO Property.
Such plan shall include potential sources of income, and to the
extent
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commercially feasible, estimates of the amount of income from each
such source. Within a reasonable period of time after receipt of
such plan, the REMIC Administrator shall consult with the Special
Servicer and shall advise the Special Servicer of the REMIC
Administrator's federal income tax reporting position with respect
to the various sources of income that the Trust Fund would derive
under the Proposed Plan. In addition, the REMIC Administrator shall
(to the extent reasonably possible) advise the Special Servicer of
the estimated amount of taxes that the Trust Fund would be required
to pay with respect to each such source of income. After receiving
the information described in the two preceding sentences from the
REMIC Administrator, the Special Servicer shall either (A) implement
the Proposed Plan (after acquiring the respective Mortgaged Property
as REO Property) or (B) manage such property in a manner that would
not result in the imposition of an REO Tax on the income derived
from such property. All of the REMIC Administrator's expenses
(including any fees and expenses of counsel or other experts
reasonably retained by it) incurred pursuant to this section shall
be reimbursed to it from the Trust Fund in accordance with Section
10.01(e).
The Special Servicer's decision as to how each REO Property
shall be managed shall be based on the Servicing Standard and in any case on the
good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially feasible and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers operating acquired mortgaged property comparable
to the respective Mortgaged Property. Both the Special Servicer and the REMIC
Administrator may, at the expense of the Trust Fund payable pursuant to Section
3.05(a)(xiii) consult with counsel.
(b) If title to any REO Property is acquired, the Special
Servicer shall manage, conserve and protect such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or either result in the receipt by REMIC I of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation and management, maintenance and disposition of such REO
Property, including without limitation:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that may result in the imposition of a lien
thereon;
(iii) any ground rents in respect of such REO Property;
and
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(iv) all costs and expenses necessary to maintain,
lease, sell, protect, manage and restore such REO Property.
To the extent that amounts on deposit in the REO Account in
respect of any REO Property are insufficient for the purposes set forth in the
preceding sentence with respect to such REO Property, the Master Servicer,
subject to the second paragraph of Section 3.03(c), shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officers' Certificate delivered to the Trustee) the Master Servicer would
not make such advances if the Master Servicer owned such REO Property or the
Master Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Unless Section 3.17 (a)(i) applies, the Special Servicer
shall contract with any Independent Contractor for the operation and management
of any REO Property, provided that:
(i) the terms and conditions of any such contract may
not be inconsistent herewith and shall reflect an agreement reached
at arm's length;
(ii) the fees of such Independent Contractor (which
shall be expenses of the Trust Fund) shall be reasonable and
customary in consideration of the nature and locality of the REO
Property;
(iii) except as permitted under Section 3.17(a), any
such contract shall require, or shall be administered to require,
that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation,
those listed in Section 3.17(b) above, and (B) except to the extent
that such revenues are derived from any services rendered by the
Independent Contractor to tenants of the REO Property that are not
customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the
Treasury Regulations or any successor provision), remit all related
revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c)
relating to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect
to the operation and management of any such REO Property; and
(v) the Special Servicer shall be obligated 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 it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this
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Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(c) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
SECTION 3.18 Resolution of Defaulted Mortgage Loans and REO
Properties.
(a) The Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Mortgage Loan or an
REO Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) After a Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer shall determine the fair value of the Mortgage Loan in
accordance with the Servicing Standard; provided, however, that such
determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgage Property unless it has an Appraisal that is less
than 12 months old and has no actual knowledge of, or notice of, any event which
in the Special Servicer's judgment would materially affect the validity of such
Appraisal. The Special Servicer shall make its fair value determination as soon
as reasonably practicable (but in any event within thirty (30) days) after its
receipt of such new Appraisal, if applicable. The Special Servicer will be
permitted, from time to time, to adjust its fair value determination based upon
changed circumstances, new information and other relevant factors, in each
instance in accordance with the Servicing Standard; provided, however, that the
Special Servicer shall update its fair value determination at least once every
90 days; provided further that absent the Special Servicer having actual
knowledge of a material change in circumstances affecting the value of the
related Mortgaged Property, the Special Servicer shall not be obligated to
update such determination. The Special Servicer shall notify the Trustee, the
Master Servicer, each Rating Agency and the Majority Subordinate
Certificateholder promptly upon its fair value determination and any adjustment
thereto. The Special Servicer shall also deliver to the Master Servicer and the
Majority Subordinate Certificateholder the most recent Appraisal of the related
Mortgaged Property then in the Special Servicer's possession, together with such
other third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). Notwithstanding the foregoing,
the Special Servicer shall not be required to deliver the Determination
Information to the Master Servicer, and shall instead deliver the Determination
Information to the Trustee, if the Master Servicer will not be determining
whether the Option Price represents fair value for the Defaulted Mortgage Loan,
pursuant to this Section 3.18.
In determining the fair value of any Defaulted Mortgage Loan,
the Special Servicer shall take into account, among other factors, the period
and amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
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Property and the expected recoveries from pursuing a work-out or foreclosure
strategy instead of selling the Defaulted Mortgage Loan to the Purchase Option
holder. In addition, the Special Servicer shall refer to all other relevant
information obtained by it or otherwise contained in the Mortgage Loan File;
provided that the Special Servicer shall take account of any change in
circumstances regarding the related Mortgaged Property known to the Special
Servicer that has occurred subsequent to, and that would, in the Special
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in the most recent related Appraisal. Furthermore,
the Special Servicer shall consider all available objective third-party
information obtained from generally available sources, as well as information
obtained from vendors providing real estate services to the Special Servicer,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located.
(c) Subject to the terms set forth in Section 2.03, in the
event a Mortgage Loan becomes a Defaulted Mortgage Loan, each of the Majority
Subordinate Certificateholder and the Special Servicer (each, together with
their assignees, an "Option Holder") shall have an assignable option (a
"Purchase Option"), subject to the right of the related Companion Holder to
purchase the related AB Mortgage Loan or the related REO Property described in
Section 3.26(d), to purchase such Defaulted Mortgage Loan from the Trust Fund at
a price (the "Option Price") equal to (i) the Purchase Price, if the Special
Servicer has not yet determined the fair value of the Defaulted Mortgage Loan,
or (ii) the fair value of the Defaulted Mortgage Loan as determined by the
Special Servicer in the manner described in Section 3.18(b) and in accordance
with the Servicing Standard, if the Special Servicer has made such fair value
determination. Any holder of a Purchase Option may sell, transfer, assign or
otherwise convey its Purchase Option with respect to any Defaulted Mortgage Loan
to any party at any time after the related Mortgage Loan becomes a Defaulted
Mortgage Loan. The transferor of any Purchase Option shall notify the Trustee
and the Master Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and appropriate
contact person(s) and shall be acknowledged in writing by the transferee.
Notwithstanding the foregoing, the Majority Subordinate Certificateholder shall
have the right to exercise its Purchase Option prior to any exercise of the
Purchase Option by the Special Servicer; provided, however, if the Purchase
Option is not exercised by the Majority Subordinate Certificateholder or any
assignee thereof within 60 days of a Mortgage Loan becoming a Defaulted Mortgage
Loan, then the Special Servicer shall have the right, but subject to the right
of the related Companion Holder to purchase the related AB Mortgage Loan or the
related REO Property described in Section 3.26(d), to exercise its Purchase
Option prior to any exercise by the Majority Subordinate Certificateholder and
the Special Servicer or its assignee may exercise such Purchase Option at any
time during the fifteen day period immediately following the expiration of such
60-day period. Following the expiration of such fifteen day period, the Majority
Subordinate Certificateholder shall again have the right to exercise its
Purchase Option prior to any exercise of the Purchase Option by the Special
Servicer. If not exercised earlier, the Purchase Option with respect to any
Defaulted Mortgage Loan will automatically terminate (i) once the related
Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan; provided,
however, that if such Mortgage Loan subsequently becomes a Defaulted Mortgage
Loan, the related Purchase Option shall again be exercisable, (ii) upon the
acquisition, by or on behalf of the Trust Fund, of title to the related
Mortgaged Property through foreclosure or deed in lieu of foreclosure or (iii)
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the modification or pay-off, in full or at a discount, of such Defaulted
Mortgage Loan in connection with a workout.
(d) RESERVED
(e) Upon receipt of notice from the Special Servicer
indicating that a Mortgage Loan has become a Defaulted Mortgage Loan, the holder
(whether the original grantee of such option or any subsequent transferee) of
the Purchase Option may, subject to the right of the related Companion Holder to
purchase the related AB Mortgage Loan or the related REO Property described in
Section 3.26(d), exercise the Purchase Option by providing the Master Servicer
and the Trustee written notice thereof (the "Purchase Option Notice"), in the
form of Exhibit BB, which notice shall identify the Person that, on its own or
through an Affiliate, will acquire the related Mortgage Loan upon closing and
shall specify a cash exercise price at least equal to the Option Price. The
Purchase Option Notice shall be delivered in the manner specified in Section
11.05. The exercise of any Purchase Option pursuant to this clause (e) shall be
irrevocable.
(f) If the Special Servicer or the Majority Subordinate
Certificateholder, or any of their respective Affiliates, is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, and the Option Price is based upon the Special Servicer's fair value
determination, the Master Servicer shall determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner set forth
in Section 3.18(b) and as soon as reasonably practicable but in any event within
thirty (30) days (except as such period may be extended as set forth in this
paragraph) of its receipt of the Purchase Option Notice and Determination
Information from the Special Servicer. In determining whether the Option Price
represents the fair value of such Defaulted Mortgage Loan, the Master Servicer
may obtain an opinion as to the fair value of such Defaulted Mortgage Loans,
taking into account the factors set forth in Section 3.18(b), from an
Independent Appraiser or other Independent expert of recognized standing having
experience in evaluating the value of defaulted mortgage loans which opinion
shall be based on a review, analysis and evaluation of the Determination
Information, and to the extent such an Independent Appraiser or third party
deems any such Determination Information to be defective, incorrect,
insufficient or unreliable, such Person may base its opinion on such other
information it deems reasonable or appropriate, and, absent manifest error, the
Master Servicer may conclusively rely on the opinion of any such Person which
was chosen by the Master Servicer with reasonable care. Notwithstanding the
thirty (30) day time period referenced above in this paragraph, the Master
Servicer will have an additional fifteen (15) days to make a fair value
determination if the Person referenced in the immediately preceding sentence has
determined that the Determination Information is defective, incorrect,
insufficient or unreliable. The reasonable costs of all appraisals, inspection
reports and opinions of value, reasonably incurred by the Master Servicer or any
such third party pursuant to this paragraph shall be advanced by the Master
Servicer and shall constitute, and be reimbursable as, Servicing Advances. In
connection with the Master Servicer's determination of fair value, the Special
Servicer shall deliver to the Master Servicer the Determination Information for
the use of the Master Servicer or any such third party.
Notwithstanding anything contained in this Section 3.18(f) to
the contrary, if the Special Servicer, the Majority Subordinate
Certificateholder or any of their respective Affiliates,
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is identified in the Purchase Option Notice as the Person expected to acquire
the related Mortgage Loan, and the Option Price is based upon the Special
Servicer's fair value determination, and the Master Servicer and the Special
Servicer are Affiliates, the Trustee shall determine whether the Option Price
represents fair value for the Defaulted Mortgage Loan, in the manner set forth
in Section 3.18(b) and as soon as reasonably practicable but in any event within
thirty (30) days (except as such period may be extended as set forth in this
paragraph) of its receipt of the Purchase Option Notice and Determination
Information from the Special Servicer. In determining whether the Option Price
represents the fair value of such Defaulted Mortgage Loan, the Trustee may
obtain an opinion as to the fair value of such Defaulted Mortgage Loans, taking
into account the factors set forth in Section 3.18(b), from an Independent
Appraiser or other Independent expert of recognized standing having experience
in evaluating the value of defaulted mortgage loans which opinion shall be based
on a review, analysis and evaluation of the Determination Information, and to
the extent such an Independent Appraiser or third party deems any such
Determination Information to be defective, incorrect, insufficient or
unreliable, such Person may base its opinion on such other information it deems
reasonable or appropriate, and absent manifest error, the Trustee may
conclusively rely on the opinion of any such Person which was chosen by the
Trustee with reasonable care. Notwithstanding the thirty (30) day time period
referenced above in this paragraph, the Trustee will have an additional fifteen
(15) days to make a fair value determination if the Person referenced in the
immediately preceding sentence has determined that the Determination Information
is defective, incorrect, insufficient or unreliable. The reasonable costs of all
appraisals, inspection reports and opinions of value, reasonably incurred by the
Trustee or any such third party pursuant to this paragraph shall be advanced by
the Master Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Trustee's determination of fair value the
Special Servicer shall deliver to the Trustee the Determination Information for
the use of the Trustee or any such third party.
In the event a designated third party determines that the
Option Price is less than the fair value of the Defaulted Mortgage Loan, such
party shall provide its determination, together will all information and reports
it relied upon in making such determination, to the Special Servicer, the Master
Servicer or the Trustee, as the case may be, who shall then adjust its fair
value determination and, consequently, the Option Price, pursuant to Section
3.18(b). The Special Servicer shall promptly provide written notice of any
adjustment of the Option Price to the Option Holder whose Purchase Option has
been declared effective pursuant to Section 3.18(e) above. Upon receipt of such
notice, such Option Holder shall have three (3) Business Days to (i) accept the
Option Price as adjusted and proceed in accordance with Section 3.18(g) below,
or (ii) reject the Option Price as adjusted, in which case such Option Holder
shall not be obligated to close the purchase of the Defaulted Mortgage Loan.
Upon notice from such Option Holder, or the Special Servicer, that such Option
Holder rejects the Option Price as adjusted, the Master Servicer and the Trustee
shall provide the notices described in Section 3.18(h) below and thereafter any
Option Holder may exercise its purchase option in accordance with this Section
3.18, at the Option Price as adjusted.
(g) The Option Holder whose Purchase Option is declared
effective pursuant to Section 3.18(e) above shall be required to pay the
purchase price specified in its Purchase Option Notice to the Master Servicer
within ten (10) Business Days of its receipt of the Master Servicer's notice
confirming that the exercise of its Purchase Option is effective. Upon receipt
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of an Officer's Certificate and a Request for Release from the Master Servicer
specifying the date for closing the purchase of the related Defaulted Mortgage
Loan, and the purchase price to be paid therefor, the Trustee shall deliver at
such closing for release to or at the direction of such Option Holder, the
related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it by such Option Holder and are reasonably necessary to vest in the purchaser
or any designee thereof the ownership of such Mortgage Loan. In connection with
any such purchase by any Person other than it, the Special Servicer shall
deliver the related Mortgage File to or at the direction of the purchaser. In
any case, the Master Servicer shall deposit the purchase price into the
Certificate Account within one (1) Business Day following receipt.
(h) The Master Servicer shall immediately notify the Trustee
and the Special Servicer upon the holder of the effective Purchase Option's
failure to remit the purchase price specified in its Purchase Option Notice
pursuant to this Section 3.18(h). Thereafter, the Trustee shall notify each
Option Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18.
(i) Unless and until the Purchase Option with respect to a
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue such
other resolution strategies available hereunder with respect to such Defaulted
Mortgage Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate consistent with the Servicing Standard;
provided, however, the Special Servicer will not be permitted to sell the
Defaulted Mortgage Loan other than in connection with the exercise of the
related Purchase Option.
(j) In the event that title to any REO Property is acquired by
the Trust in respect of any Defaulted 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 Controlling Class Representative, shall use its
reasonable best efforts to sell any REO Property as soon as practicable in
accordance with Section 3.16(a). If the Special Servicer on behalf of the
Trustee has not received an REO Extension or an Opinion of Counsel described in
Section 3.16(a) and the Special Servicer is not able to sell such REO Property
within the period specified above, or if an REO 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 Controlling
Class Representative, 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. The Special
Servicer shall give the Controlling Class Representative, the Master Servicer
and the Trustee not less than five days' prior written notice of its intention
to sell any REO Property, and in respect of such sale, the Special Servicer
shall offer such REO Property in a commercially reasonable manner. Where any
Interested Person is among those bidding with respect to an REO Property, the
Special Servicer shall require that all bids be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the bid
amount. 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 Fund, an Appraisal of
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such REO Property and (iii) the Special Servicer shall not bid less than the
greater of (a) the fair market value set forth in such Appraisal or (b) the
Purchase Price.
(k) Subject to the REMIC Provisions, the Special Servicer
shall act on behalf of the Trust in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property or the
exercise of a Purchase Option, including the collection of all amounts payable
in connection therewith. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates may
bid for or purchase any REO Property or purchase any Defaulted Mortgage Loan.
Any sale of a Defaulted Mortgage Loan (pursuant to a Purchase Option) or an REO
Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Special Servicer, the Master
Servicer, any Mortgage Loan Seller or the Trust. Notwithstanding the foregoing,
nothing herein shall limit the liability of the Master Servicer, the Special
Servicer or the Trustee to the Trust and the Certificateholders for failure to
perform its duties in accordance herewith. None of the Special Servicer, the
Master Servicer, the Depositor, the Trustee or the Fiscal Agent shall have any
liability to the Trust or any Certificateholder with respect to the price at
which a Defaulted Mortgage Loan is sold if the sale is consummated in accordance
with the terms of this Agreement.
(l) Upon exercise of a Purchase Option, the holder of such
Purchase Option shall be required to pay the purchase price specified in its
Purchase Option Notice to the Special Servicer within 10 Business Days of
exercising its Purchase Option. The proceeds of any sale of a Defaulted Mortgage
Loan, after deduction of the expenses of such sale incurred in connection
therewith, shall be deposited by the Special Servicer within one Business Day of
receipt in the Certificate Account.
(m) Notwithstanding Section 3.18(c), Section 3.18(e) or
Section 3.18(i), pursuant to the terms of the Abbey Intercreditor Agreement, the
Abbey Mezzanine Lender will have the right to purchase the Mortgage Loans
described in the Abbey Intercreditor Agreement at the Purchase Price (as long as
an event of default has occurred and is continuing under the related Mortgage
Loan documents) and such right shall have priority over any provision of Section
3.18(c) or Section 3.18(i); provided, however, with respect to this Section
3.18(m) that if the Abbey Mezzanine Lender does not exercise its right to
purchase the applicable Mortgage Loan within the 15 day time period pursuant to
the Abbey Intercreditor Agreement, with respect to any purchase of the
applicable Mortgage Loan, the Abbey Mezzanine Lender will be required to pay an
amount equal to 1% of the purchase price of the applicable Mortgage Loan to the
Special Servicer as a Principal Recovery Fee (and such Principal Recovery Fee
will not be an expense of the Trust Fund).
(n) Notwithstanding anything herein to the contrary, the
Special Servicer shall not take or refrain from taking any action pursuant to
instructions from the Controlling Class Representative that would cause it to
violate applicable law or any term or provision of this Agreement, including the
REMIC Provisions and the Servicing Standard.
(o) The amount paid for a Defaulted Mortgage Loan or related
REO Property purchased under this Agreement shall be deposited into the
Certificate Account, or if applicable, applied in accordance with the related
Intercreditor Agreement. Upon receipt of an Officers'
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Certificate from the Master Servicer to the effect that such deposit has been
made, the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the purchaser of such Defaulted Mortgage Loan or
related REO Property ownership of the Defaulted Mortgage Loan or REO Property.
The Custodian, upon receipt of a Request for Release, shall release or cause to
be released to the Master Servicer or Special Servicer the related Mortgage
File. In connection with any such purchase, the Special Servicer shall deliver
the related Servicing File to the purchaser of a Defaulted Mortgage Loan or
related REO Property.
SECTION 3.19 Additional Obligations of Master Servicer.
(a) The Master Servicer shall deposit in the Certificate
Account on each P&I Advance Date, without any right of reimbursement therefor
with respect to each Mortgage Loan (other than a Specially Serviced Mortgage
Loan) that was subject to a Principal Prepayment during the most recently ended
Collection Period creating a Prepayment Interest Shortfall, an amount equal to
the lesser of (i) the amount of the related Prepayment Interest Shortfall and
(ii) the sum of (A) the Master Servicing Fee (calculated for this purpose only
at a rate of 0.02% per annum) received by the Master Servicer during such
Collection Period on such Mortgage Loan and (B) investment income earned by the
Master Servicer on the related Principal Prepayment during the most recently
ended Collection Period, provided, however, that the Master Servicer will not be
responsible for the payment of any Prepayment Interest Shortfall to the extent
the incurrence of such Prepayment Interest Shortfall is consistent with the
Servicing Standard and the Master Servicer has given at least five Business
Days' prior notice thereof (or to the extent that five Business Day's prior
notice is not practicable, such period of prior notice as is practicable) to the
Controlling Class Representative.
(b) The Master Servicer shall, as to each Mortgage Loan which
is secured by the interest of the related Mortgagor under a Ground Lease,
promptly (and in any event within 60 days of the Closing Date) notify the
related ground lessor in writing of the transfer of such Mortgage Loan to the
Trust Fund pursuant to this Agreement and inform such ground lessor that any
notices of default under the related Ground Lease should thereafter be forwarded
to the Master Servicer.
(c) The Master Servicer shall provide to each Companion Holder
any reports or notices required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement.
SECTION 3.20 Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(k) below and
further subject to Sections 3.08(b) and 6.11, the Master Servicer (to the extent
provided in Section 3.02(a) and Section 3.20(i) below) and the Special Servicer
may, on behalf of the Trust Fund, agree to any modification, waiver or amendment
of any term of any Mortgage Loan (including, subject to Section 3.20(i), the
lease reviews and lease consents related thereto) without the consent of the
Trustee or any Certificateholder.
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(b) All modifications, waivers or amendments of any Mortgage
Loan (including, subject to Section 3.20(i), the lease reviews and lease
consents related thereto) shall be in writing and shall be considered and
effected in accordance with the Servicing Standard; provided however, that
neither the Master Servicer nor the Special Servicer, as applicable, shall make
or permit or consent to, as applicable, any modification, waiver or amendment of
any term of any Mortgage Loan not otherwise permitted by this Section 3.20 that
would constitute a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
(c) Except as provided in 3.20(d) and the last two sentences
of Section 3.02(a), the Special Servicer, on behalf of the Trust Fund, shall not
agree or consent to any modification, waiver or amendment of any term of any
Mortgage Loan that would:
(i) affect the amount or timing of any related payment
of principal, interest or other amount (including Prepayment
Premiums or Yield Maintenance Charges, but excluding Penalty
Interest and amounts payable as additional servicing compensation)
payable thereunder;
(ii) affect the obligation of the related Mortgagor to
pay a Prepayment Premium or Yield Maintenance Charge or permit a
Principal Prepayment during any period in which the related Mortgage
Note prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related
Mortgage or pursuant to Section 3.09(d), result in a release of the
lien of the Mortgage on any material portion of the related
Mortgaged Property without a corresponding Principal Prepayment in
an amount not less than the fair market value (as determined by an
appraisal by an Independent Appraiser delivered to the Special
Servicer at the expense of the related Mortgagor and upon which the
Special Servicer may conclusively rely) of the property to be
released other than in connection with a taking of all or part of
the related Mortgaged Property or REO Property for not less than
fair market value by exercise of the power of eminent domain or
condemnation or casualty or hazard losses with respect to such
Mortgaged Property or REO Property; or
(iv) if such Mortgage Loan is equal to or in excess of
5% of the then aggregate current principal balances of all Mortgage
Loans or $20,000,000, permit the transfer or transfers of equity
interests in the borrower or any equity owner of the borrower that
would result, in the aggregate during the term of the related
Mortgage Loan, in a transfer greater than 49% of the total interest
in the borrower and/or any equity owner of the borrower or a
transfer of voting control in the borrower or an equity owner of the
borrower without the prior written confirmation from each Rating
Agency that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the
Certificates;
(v) in the reasonable, good faith judgment of the
Special Servicer, otherwise materially impair the security for such
Mortgage Loan or reduce the likelihood of timely payment of amounts
due thereon; or
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(vi) impair the value or enforceability of a Lease
Enhancement Policy
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative (and in the case of the AB Mortgage Loans and the Companion
Loans, each of the Companion Holders pursuant to Section 6.11) set forth in
Section 6.11, the Special Servicer may (i) reduce the amounts owing under any
Specially Serviced Mortgage Loan by forgiving principal, accrued interest or any
Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of the
Periodic 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, or (v) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period; provided that (A) the related Mortgagor
is in default with respect to the Specially Serviced Mortgage Loan or, in the
reasonable, good faith judgment of the Special Servicer, such default is
reasonably foreseeable, and (B) in the reasonable, good faith judgment of the
Special Servicer, such modification would increase the recovery on the Mortgage
Loan to Certificateholders on a net present value basis (the relevant
discounting of amounts that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate). In the case of every other
modification, waiver or consent, the Special Servicer shall determine and may
rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of
the Trust Fund to the extent not paid by the related Mortgagor) to the effect
that such modification, waiver or amendment would not (1) effect an exchange or
reissuance of the Mortgage Loan under Treasury Regulations Section 1.860G-2(b)
of the Code, (2) cause REMIC I or REMIC II to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions, or (3)
adversely affect the status of the Grantor Trust under the Code.
In addition, notwithstanding Section 3.20(c), but subject to
the third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained an
appraisal in accordance with the standards of the Appraisal Institute of the
related Mortgaged Property, performed by an Independent Appraiser, in connection
with such extension, which appraisal supports the determination of the Special
Servicer contemplated by clause (B) of the proviso to the immediately preceding
paragraph.
In no event will the Special Servicer (i) extend the maturity
date of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) reduce the Mortgage Rate of a Mortgage Loan to less than
the lesser of (A) the original Mortgage Rate of such Mortgage Loan, (B) the
highest Pass-Through Rate of any Class of Certificates (other than the Class X
Certificates) then outstanding and (C) a rate below the then prevailing interest
rate for comparable loans, as determined by the Special Servicer, (iii) if the
Mortgage Loan is secured by a Ground Lease (and not by the corresponding fee
simple interest), extend the maturity date of such Mortgage Loan beyond a date
which is less than 20 years prior to the expiration of the term of such Ground
Lease including any unilateral options to extend such term; or (iv) defer
interest due on any Mortgage Loan in excess of 10% of the Stated Principal
Balance of such Mortgage Loan or defer the collection of interest on any
Mortgage Loan without
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accruing interest on such deferred interest at a rate at least equal to the
Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph of this Section 3.20(d) shall
be evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer and describing in reasonable detail the basis for the
Special Servicer's determination. The Special Servicer shall append to such
Officer's Certificate any information including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals that
support such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below,
the Master Servicer may, as a condition to granting any request by a Mortgagor
for consent, modification, waiver or indulgence or any other matter or thing,
the granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, provided such fee
would not itself be a "significant modification" pursuant to Treasury
Regulations Section 1.1001-3(e)(2) and (ii) any related costs and expenses
incurred by it. In no event shall the Special Servicer be entitled to payment
for such fees or expenses unless such payment is collected from the related
Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub-Servicers, the Trustee, the Controlling Class Representative and the
Rating Agencies, and with respect to each Loan Pair, the related Companion
Holder, in writing, of any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Mortgagor) and the date thereof, and
shall deliver to the Custodian for deposit in the related Mortgage File, with a
copy to the Master Servicer, an original counterpart of the agreement relating
to such modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. Copies of each agreement whereby
any such modification, waiver or amendment of any term of any Mortgage Loan is
effected shall be made available for review upon prior request during normal
business hours at the offices of the Special Servicer pursuant to Section
3.15(a) hereof.
(h) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) on or before the earliest date on which defeasance is
permitted under the terms of such Mortgage Loan, and (y) to the extent
inconsistent with the terms of such Mortgage Loan, and if the terms of the
Mortgage Loan grant the Master Servicer the right to require defeasance, the
Master
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Servicer shall act in accordance with the Servicing Standard to require
defeasance. Unless and to the extent the Master Servicer is precluded from
preventing such defeasance by the related Mortgage Loan documents or otherwise
(provided that the Master Servicer shall not allow such defeasance to cause any
REMIC created hereunder to fail to qualify as a REMIC, and provided further, the
Master Servicer may rely on an Opinion of Counsel as provided for in (ii)
below), the Master Servicer will not permit defeasance of any Mortgage Loan,
unless: (i) the defeasance collateral consists of "Government Securities" within
the meaning of the Investment Company Act of 1940, (ii) the Master Servicer has
determined that the defeasance will not result in an Adverse REMIC Event
(provided that the Master Servicer shall be entitled to rely conclusively on an
Opinion of Counsel to that effect), (iii) the Master Servicer has notified the
Rating Agencies, (iv) each Rating Agency has confirmed that such defeasance will
not result in the qualification, downgrade or withdrawal of the rating then
assigned to any Class of Certificates to which a rating has been assigned by
either Rating Agency, (v) the Master Servicer has requested and received from
the related Mortgagor (A) an Opinion of Counsel generally to the effect that the
Trustee will have a perfected, first priority security interest in such
defeasance collateral and (B) written confirmation from a firm of Independent
accountants stating that payments made on such defeasance collateral in
accordance with the terms thereof will be sufficient to pay the subject Mortgage
Loan in full on or before its Stated Maturity Date and in accordance with the
Periodic Payment (or, in the case of an ARD Loan, on or before its Anticipated
Repayment Date) and to timely pay each Periodic Payment scheduled to be due
prior thereto but after the defeasance and (vi) a single purpose entity (as
defined below) is designated to assume the Mortgage Loan and own the defeasance
collateral; provided that, if under the terms of the related Mortgage Loan
documents, the related Mortgagor delivers cash to purchase the defeasance
collateral rather than the defeasance collateral itself, the Master Servicer
shall purchase the U.S. government obligations contemplated by the related
Mortgage Loan documents. Subsequent to the second anniversary of the Closing
Date, to the extent that the Master Servicer can, in accordance with the related
Mortgage Loan documents, require defeasance of any Mortgage Loan in lieu of
accepting a prepayment of principal thereunder, including a prepayment of
principal accompanied by a Prepayment Premium or Yield Maintenance Charge, the
Master Servicer shall, to the extent it is consistent with the Servicing
Standard, require such defeasance, provided that the conditions set forth in
clauses (i) through (vi) of the preceding sentence have been satisfied. Any
customary and reasonable out-of-pocket expense incurred by the Master Servicer
pursuant to this Section 3.20(h) shall be paid by the Mortgagor of the defeased
Mortgage Loan pursuant to the related Mortgage, Mortgage Note or other pertinent
document. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not obligated to deliver the
full amount of the defeasance collateral contemplated by the related Mortgage
Loan documents (or cash sufficient to purchase such defeasance collateral), then
the Master Servicer shall (i) if consistent with the related Mortgage Loan
documents, refuse to allow the defeasance of the Mortgage Loan or (ii) if the
Master Servicer cannot so refuse and if the related Mortgagor has delivered cash
to purchase the defeasance collateral, the Master Servicer shall either (A) buy
such defeasance collateral or (B) prepay the Mortgage Loan, in either case, in
accordance with the Servicing Standard. For purposes of this paragraph, a
"single purpose entity" shall mean a Person, other than an individual, whose
organization documents provide as follows: it is formed solely for the purpose
of owning and operating a single property, assuming a Mortgage Loan and owning
and pledging the Defeasance Collateral; it may not engage in any
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business unrelated to such property and the financing thereof; it does not have
and may not own any assets other than those related to its interest in the
property or the financing thereof and may not incur any indebtedness other than
as permitted by the related Mortgage; it shall maintain its own books, records
and accounts, in each case which are separate and apart from the books, records
and accounts of any other person; it shall hold regular meetings, as
appropriate, to conduct its business, and shall observe all entity-level
formalities and record keeping; it shall conduct business in its own name and
use separate stationery, invoices and checks; it may not guarantee or assume the
debts or obligations of any other person; it shall not commingle its assets or
funds with those of any other person; it shall pay its obligations and expenses
from its own funds and allocate and charge reasonably and fairly any common
employees or overhead shared with affiliates; it shall prepare separate tax
returns and financial statements or, if part of a consolidated group, shall be
shown as a separate member of such group; it shall transact business with
affiliates on an arm's length basis pursuant to written agreements; and it shall
hold itself out as being a legal entity, separate and apart from any other
person. The single purpose entity organizational documents shall 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 during the term of the Mortgage Loan.
(i) For any Mortgage Loan other than a Specially Serviced
Mortgage Loan and subject to the rights of the Special Servicer set forth in
this Section 3.20, the Master Servicer shall be responsible for any request by a
Mortgagor for the consent of the mortgagee for a modification, waiver or
amendment of any term with respect to:
(i) approving routine leasing activity (including any
subordination, standstill, attornment agreements and lease
terminations) with respect to any lease for less than the lesser of
(a) 30,000 square feet and (b) 20% of the related Mortgaged
Property;
(ii) approving any waiver affecting the timing of
receipt of financial statements from any Mortgagor provided that
such financial statements are delivered no less than quarterly and
within 60 days of the end of the calendar quarter;
(iii) approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) provides for the payment
of operating expenses in an amount equal to more than 110% of the
amounts budgeted therefor for the prior year or (2) provides for the
payment of any material expenses to any affiliate of the Mortgagor
(other than the payment of a management fee to any property manager
if such management fee is no more than the management fee in effect
on the Cut-off Date);
(iv) subject to other restrictions herein regarding
Principal Prepayments, waiving any provision of a Mortgage Loan
requiring a specified number of days notice prior to a Principal
Prepayment; and
(v) subject to any related Intercreditor Agreement,
approving certain consents with respect to right-of-ways and
easements and consent to subordination of the related Mortgage Loan
to such easements or right-of-ways, provided, however, that any
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partial releases of a lien on any Mortgaged Property not expressly
contemplated by the terms of the related Mortgage shall be subject
to review and approval by the Special Servicer.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer and
the Special Servicer under Section 3.11 out of such Penalty Interest or late
payment charges shall be reduced proportionately, based upon the respective
amounts that had been payable thereto out of such Penalty Interest or late
payment charges immediately prior to such waiver.
(k) Notwithstanding anything to the contrary in this
Agreement, neither the Master Servicer nor the Special Servicer, as applicable,
shall take the following action unless it has received prior written
confirmation (the cost of which shall be paid by the related Mortgagor, if so
allowed by the terms of the related loan documents) from the Rating Agencies
that such action will not result in a qualification, downgrade or withdrawal of
any of the ratings assigned by such Rating Agency to the Certificates: With
respect to any Mortgaged Property that secures a Mortgage Loan with an unpaid
principal balance that is at least equal to five percent (5%) of the then
aggregate principal balance of all Mortgage Loans or $20,000,000, the giving of
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager.
(l) The Special Servicer shall not consent to the
modification, waiver or amendment of a Lease Enhancement Policy without
receiving prior written confirmation from each Rating Agency that such
modification, waiver or amendment will not result in a qualification, downgrade
or withdrawal of the ratings on the Certificates. The Master Servicer shall not
consent to any modification, waiver or amendment of any Lease Enhancement
Policy.
(m) The foregoing limitations, conditions and restrictions
will not apply to any action referenced in this Section 3.20 that is required
under the terms of any Mortgage Loan in effect on the Closing Date or that is
solely within the control of the related Mortgagor. Neither the Master Servicer
nor the Special Servicer will be required to oppose the confirmation of a plan
in any bankruptcy or similar proceeding involving a Mortgagor if, in its
judgment, opposition would not ultimately prevent the confirmation of such plan
or one substantially similar thereto.
SECTION 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has
occurred with respect to any Mortgage Loan, the Master Servicer shall promptly
notify the Trustee and if the Master Servicer is not also the Special Servicer,
the Master Servicer shall immediately give notice thereof, and shall deliver or
cause to be delivered a copy of the related Servicing File, to the Special
Servicer and shall use reasonable efforts to provide the Special Servicer with
all information, documents (or copies thereof) and records (including records
stored electronically on computer tapes, magnetic discs and the like) relating
to the Mortgage Loan and, if applicable, the related Companion Loan, either in
the Master Servicer's or any of its directors', officers',
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employees', affiliates' or agents' possession or control or otherwise available
to the Master Servicer without undue burden or expense, and reasonably requested
by the Special Servicer to enable it to assume its functions hereunder with
respect thereto without acting through a Sub-Servicer. The Master Servicer shall
use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
Notwithstanding the occurrence of a Servicing Transfer Event, the Master
Servicer shall continue to receive payments on such Mortgage Loan (including
amounts collected by the Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has
become a Corrected Mortgage Loan and if the Master Servicer is not also the
Special Servicer, the Special Servicer shall immediately give notice thereof to
the Master Servicer, and shall return the related Servicing File and all other
information, documents and records that were not part of the Servicing File when
it was delivered to the Special Servicer within five Business Days of the
occurrence, to the Master Servicer (or such other Person as may be directed by
the Master Servicer) and upon giving such notice, and returning such Servicing
File, to the Master Servicer (or such other Person as may be directed by the
Master Servicer), the Special Servicer's obligation to service such Mortgage
Loan and, if applicable, the related Companion Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan
and, if applicable, the related Companion Loan, shall terminate, and the
obligations of the Master Servicer to service and administer such Mortgage Loan
and, if applicable, the related Companion Loan, shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents included
within the definition of "Mortgage File" for inclusion in the related Mortgage
File (with a copy of each such original to the Master Servicer), and copies of
any additional related Mortgage Loan information, including correspondence with
the related Mortgagor.
(c) On or before each Determination Date, the Special Servicer
shall deliver to the Master Servicer and each Rating Agency (or such other
Person as may be directed by the Master Servicer) a statement in writing and in
computer readable format (the form of such statement to be agreed upon by the
Master Servicer) describing, on a loan-by-loan and property-by-property basis,
(1) insofar as it relates to Specially Serviced Mortgage Loans and REO
Properties, the information described in clauses (x) through (xiii) of Section
4.02(a) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxiii), (xxiv) and (xxv) of Section 4.02(a), (2) the
amount of all payments, Insurance Proceeds and Liquidation Proceeds received,
and the amount of any Realized Loss incurred, with respect to each Specially
Serviced Mortgage Loan during the related Collection Period, and the amount of
all REO Revenues, Insurance Proceeds and Liquidation Proceeds received, and the
amount of any Realized Loss incurred, with respect to each REO Property during
the related Collection Period, (3) the amount, purpose and date of all Servicing
Advances requested by the Special Servicer to be made by the Master Servicer
with respect to each Specially Serviced Mortgage Loan and REO Property during
the related Collection Period and (4) such additional information relating to
the Specially Serviced Mortgage Loans and REO Properties as the Master Servicer
reasonably requests to
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enable it to perform its responsibilities under this Agreement. Notwithstanding
the foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially Serviced
Mortgage Loans and REO Properties and shall provide the Special Servicer with
any information reasonably available to the Master Servicer required by the
Special Servicer to perform its duties under this Agreement.
(d) No later than 60 days after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall deliver to each
Rating Agency, the Trustee, the Master Servicer and the Controlling Class
Representative a report (the "Asset Status Report") with respect to such Loan
and the related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced
Mortgage Loan and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Specially Serviced
Mortgage Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgaged Property
together with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action
with respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer
deems relevant in light of the Servicing Standard.
If, subject to Section 6.11 of this Agreement, within ten (10)
Business Days of receiving an Asset Status Report which relates to a recommended
action for which the Controlling Class Representative is entitled to object
under Section 6.11, the Controlling Class Representative does not disapprove
such Asset Status Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report; provided, however,
that the Special Servicer may not take any action that is contrary to applicable
law, the Servicing Standard, or the terms of the applicable Mortgage Loan
documents. If, subject to Section 6.11 of this Agreement, the Controlling Class
Representative disapproves such Asset Status Report, the Special Servicer will
revise such Asset Status Report and deliver to the Controlling Class
Representative, the Rating Agencies and the Master Servicer a new Asset Status
Report as soon as practicable, but in no event later than 30 days after such
disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Controlling Class
Representative, shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised
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Asset Status Report or until the Special Servicer makes one of the
determinations described below. The Special Servicer may, from time to time,
modify any Asset Status Report it has previously delivered and implement such
report, provided such report shall have been prepared, reviewed and not rejected
pursuant to the terms of this Section. Notwithstanding the foregoing, the
Special Servicer (i) may, following the occurrence of an extraordinary event
with respect to the related Mortgaged Property, take any action set forth in
such Asset Status Report (and consistent with the terms hereof) before the
expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Controlling Class Representative, and (ii) in
any case, shall determine whether such affirmative disapproval is not in the
best interest of all the Certificateholders pursuant to the Servicing Standard.
Upon making such determination in clause (ii) of the
immediately preceding paragraph, the Special Servicer shall notify the Trustee
of such rejection and deliver to the Trustee a proposed notice to
Certificateholders which shall include a copy of the Asset Status Report, and
the Trustee shall send such notice to all Certificateholders. If the majority of
such Certificateholders, as determined by Voting Rights, fail, within 5 days of
the Trustee's sending such notice, to reject such Asset Status Report, the
Special Servicer shall implement the same. If the Asset Status Report is
rejected by a majority of the Certificateholders, (other than for a reason which
violates the Servicing Standard, which shall control), the Special Servicer
shall revise such Asset Status Report as described above in this Section 3.21(d)
and provide a copy of such revised report to the Master Servicer. The Trustee
shall be entitled to reimbursement from the Trust Fund for the reasonable
expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard, the terms hereof and the related Asset
Status Report. The Special Servicer shall not take any action inconsistent with
the related Asset Status Report, unless such action would be required in order
to act in accordance with the Servicing Standard.
No direction of the Controlling Class Representative or the
majority of the Certificateholders shall (a) require or cause the Special
Servicer to violate the terms of a Specially Serviced Mortgage Loan, applicable
law or any provision of this Agreement, including the Special Servicer's
obligation to act in accordance with the Servicing Standard and to maintain the
REMIC status of each REMIC, (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions or (c)
expose the Master Servicer, the Special Servicer, the Depositor, any of the
Mortgage Loan Sellers, the Trust Fund, the Trustee or the Fiscal Agent or the
officers and the directors of each party to claim, suit or liability or (d)
expand the scope of the Master Servicer's, the Trustee's, the Fiscal Agent's or
the Special Servicer's responsibilities under this Agreement.
SECTION 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter
into Sub-Servicing Agreements to provide for the performance by third parties of
any or all of their respective obligations hereunder, provided that, in each
case, the Sub-Servicing Agreement: (i) is
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consistent with this Agreement in all material respects, requires the
Sub-Servicer to comply with all of the applicable conditions of this Agreement
and includes events of default with respect to the Sub-Servicer substantially
similar to the Events of Default set forth in Section 7.01(a) hereof (other than
Section 7.01(a)(x) and (xi)) to the extent applicable (modified to apply to the
Sub-Servicer instead of the Master Servicer); (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent such obligations arose prior to the date of
assumption, obligations of the Master Servicer or the Special Servicer, as the
case may be, under such agreement or (except with respect only to the
Sub-Servicing Agreements in effect as of the date of this Agreement) may
terminate such subservicing agreement without cause and without payment of any
penalty or termination fee (other than the right of reimbursement and
indemnification); (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Fiscal Agent, the Trust Fund, any successor Master Servicer or Special
Servicer, as the case may be, or any Certificateholder shall have any duties
under such agreement or any liabilities arising therefrom; (iv) permits any
purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
agreement with respect to such purchased Mortgage Loan at its option and without
penalty, (v) with respect to any Sub-Servicing Agreement entered into by the
Special Servicer, does not permit the Sub-Servicer to enter into or consent to
any modification, waiver or amendment or otherwise take any action on behalf of
the Special Servicer contemplated by Section 3.20 hereof without the consent of
such Special Servicer or conduct any foreclosure action contemplated by Section
3.09 hereof or sale of a Mortgage Loan or REO Property contemplated by Section
3.18 hereof, and (vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall be subject to Section 3.21 hereof with respect
to any Mortgage Loan that becomes a Specially Serviced Mortgage Loan. The Master
Servicer and the Special Servicer will each be solely liable for all fees owed
by it to any Sub-Servicer with which it has entered into a Sub-Servicing
Agreement, irrespective of whether its compensation under this Agreement is
sufficient to pay those fees. The Master Servicer and the Special Servicer each
shall deliver to the Trustee and to each other copies of all Sub-Servicing
Agreements, and any amendments thereto and modifications thereof, entered into
by it promptly upon its execution and delivery of such documents. References in
this Agreement to actions taken or to be taken by the Master Servicer or the
Special Servicer include actions taken or to be taken by a Sub-Servicer on
behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy the
obligations of the Master Servicer hereunder to make P&I Advances or Servicing
Advances shall be deemed to have been advanced by the Master Servicer out of its
own funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds as
if such Sub-Servicer were the Master Servicer. For so long as they are
outstanding, Advances shall accrue interest in accordance with Sections 3.03(d)
and 4.03(d), such interest to be allocable between the Master Servicer or the
Special Servicer, as the case may be, and such Sub-Servicer as they may agree.
For purposes of this Agreement, the Master Servicer and the
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Special Servicer each shall be deemed to have received any payment when a
Sub-Servicer retained by it receives such payment. The Master Servicer and the
Special Servicer each shall notify the other, the Trustee and the Depositor in
writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business
in the state or states in which the related Mortgaged Properties it is to
service are situated, if and to the extent required by applicable law, and shall
be an approved conventional seller/servicer of mortgage loans for FHLMC or FNMA
or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the
benefit of the Trustee and the Certificateholders, shall (at no expense to the
Trustee, the Certificateholders or the Trust Fund) monitor the performance and
enforce the obligations of their respective Sub-Servicers under the related
Sub-Servicing Agreements. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of Sub-Servicing Agreements in
accordance with their respective terms and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer or the Special Servicer, as applicable, in its good
faith business judgment, would require were it the owner of the Mortgage Loans.
Subject to the terms of the related Sub-Servicing Agreement, the Master Servicer
and the Special Servicer may each have the right to remove a Sub-Servicer at any
time it considers such removal to be in the best interests of
Certificateholders.
(d) In the event of the resignation, removal or other
termination of Wachovia Bank, National Association or any successor Master
Servicer hereunder for any reason, the Trustee or other Person succeeding such
resigning, removed or terminated party as Master Servicer, shall elect, with
respect to any Sub-Servicing Agreement in effect as of the date of this
Agreement: (i) to assume the rights and obligations of the Master Servicer under
such Sub-Servicing Agreement and continue the sub-servicing arrangements
thereunder on the same terms (including without limitation the obligation to pay
the same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement
with such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer in which case the existing Sub-Servicing Agreement
shall remain in effect); or (iii) to terminate the Sub-Servicing Agreement if
(but only if) an Event of Default (as defined in such Sub-Servicing Agreement)
has occurred and is continuing, in each case without paying any sub-servicer
termination fee.
Each Sub-Servicing Agreement will provide, among other things,
that the Master Servicer and its successors may at its sole option, terminate
any rights the Sub-Servicer may have thereunder with respect to any or all
Mortgage Loans if Xxxxx'x (i) reduces the rating assigned to one or more Classes
of the respective Certificates as a result of the sub-servicing of the Mortgage
Loans by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub-Servicer.
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(e) Notwithstanding any Sub-Servicing Agreement, the Master
Servicer and the Special Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of their respective
obligations and duties under this Agreement in accordance with the provisions
hereof to the same extent and under the same terms and conditions as if each
alone were servicing and administering the Mortgage Loans or REO Properties for
which it is responsible.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Xxxxx'x has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this section) that represent less than
25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder.
SECTION 3.23 Representations and Warranties of Master Servicer
and Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents
and warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor and the Special Servicer, as of the Closing
Date, that:
(i) The Master Servicer is a national banking
association, duly organized under the laws of the United States of
America, and the Master Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms
of this Agreement by the Master Servicer, will not violate the
Master Servicer's articles of association or by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a
party or by which it is bound.
(iii) The Master Servicer has the full power and
authority to enter into and consummate all transactions contemplated
by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer in accordance with
the terms hereof, subject to (A) applicable receivership,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and
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the rights of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the
Master Servicer's knowledge, threatened, against the Master Servicer
that would prohibit the Master Servicer from entering into this
Agreement or, in the Master Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer,
calculated on a consolidated basis.
(vii) Each officer, director, employee, consultant or
advisor of the Master Servicer with responsibilities concerning the
servicing and administration of Mortgage Loans is covered by errors
and omissions insurance in the amounts and with the coverage as, and
to the extent, required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the
case of the initial Master Servicer, the consolidated net worth
thereof and of its direct or indirect parent), determined in
accordance with generally accepted accounting principles, is not
less than $15,000,000.
(ix) Any consent, approval, authorization or order of
any court or governmental agency or body required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
(x) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The Special Servicer, in such capacity, hereby represents
and warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, the Depositor and the Master Servicer, as of the Closing
Date, that:
(i) The Special Servicer is a limited partnership duly
organized under the laws of the State of Texas, validly existing and
the Special Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
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(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's limited partnership agreement or certificate of
limited partnership or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material agreement or other material
instrument by which it is bound.
(iii) The Special Servicer has the full power and
authority to enter into and consummate all transactions contemplated
by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization,
execution and delivery by each of the other parties hereto,
constitutes a valid, legal and binding obligation of the Special
Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Special Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against the Special
Servicer that would prohibit the Special Servicer from entering into
this Agreement or, in the Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect
either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the
Special Servicer.
(vii) Each officer, director and employee of the Special
Servicer and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of
any court or governmental agency or body required for the execution,
delivery and performance by the Special Servicer of or compliance by
the Special Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
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(ix) The Special Servicer possesses all insurance
required pursuant to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer
and the Special Servicer, set forth in Section 3.23(a) (with respect to the
Master Servicer) and Section 3.23(b) (with respect to the Special Servicer),
respectively, shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties hereto.
SECTION 3.24 Sub-Servicing Agreement Representation and
Warranty.
(a) The Master Servicer, in such capacity, hereby represents
and warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
SECTION 3.25 Designation of Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee with written confirmation of its acceptance of such
appointment, an address and telecopy number for the delivery of notices and
other correspondence and a list of officers or employees of such Person with
whom the parties to this Agreement may deal (including their names, titles, work
addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the
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Master Servicer or Special Servicer, the Trustee shall deliver to the requesting
party the identity of the Controlling Class Representative and a list of each
Holder (or, in the case of Book-Entry Certificates, to the extent actually known
to a Responsible Officer of the Trustee or identified thereto by the Depository
or the Depository Participants, each Certificate Owner) of the Controlling
Class, including, in each case, names and addresses. With respect to such
information, the Trustee shall be entitled to conclusively rely on information
provided to it by the Depository, and the Master Servicer and the Special
Servicer shall be entitled to rely on such information provided by the Trustee
with respect to any obligation or right hereunder that the Master Servicer and
the Special Servicer may have to deliver information or otherwise communicate
with the Controlling Class Representative or any of the Holders (or, if
applicable, Certificate Owners) of the Controlling Class. In addition to the
foregoing, within two (2) Business Days of the selection, resignation or removal
of a Controlling Class Representative, the Trustee shall notify the other
parties to this Agreement of such event. The expenses incurred by the Trustee in
connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign
as such by giving written notice to the Trustee and to each Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Controlling Class.
The Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class
Representative shall be borne by the Holders (or, if applicable, the Certificate
Owners) of Certificates of the Controlling Class, pro rata according to their
respective Percentage Interests in such Class, and not by the Trust.
Notwithstanding the foregoing, if a claim is made against the Controlling Class
Representative by a Mortgagor with respect to this Agreement or any particular
Mortgage Loan, the Controlling Class Representative shall immediately notify the
Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer,
whereupon (if the Special Servicer or the Trust Fund are also named parties to
the same action and, in the sole judgment of the Special Servicer, (i) the
Controlling Class Representative had acted in good faith, without negligence or
willful misfeasance with regard to the particular matter, and (ii) there is no
potential for the Special Servicer or the Trust Fund to be an adverse party in
such action as regards the Controlling Class Representative) the Special
Servicer on behalf of the Trust Fund shall, subject to Section 6.03, assume the
defense of any such claim against the Controlling Class Representative. This
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provision shall survive the termination of this Agreement and the termination or
resignation of the Controlling Class Representative.
(f) All rights to, and requirements for, information
(including the delivery of information or access to information) provided to the
Controlling Class Representative contained herein shall also apply to each
Companion Holder with respect to information relating to the related AB Mortgage
Loan (other than with respect to information related to the calculation of the
Option Price related to the related AB Mortgage Loan except to the extent
required to be furnished under the related Intercreditor Agreement).
SECTION 3.26 Servicing and Administration of the AB Mortgage
Loans and the Companion Loans.
(a) Each Companion Loan shall be serviced and administered
hereunder as if it was a Mortgage Loan for so long as the related AB Mortgage
Loan or REO Loan is an asset of the Trust Fund, including for purposes of: (i)
the application of the Servicing Standard, as if the holder of such Companion
Loan was the Holder of a separate Class of Certificates backed solely by such
Companion Loan; (ii) determining whether a Companion Loan is a Specially
Serviced Mortgaged Loan; and (iii) the payment of the Special Servicing Fee and
other forms of compensation to the Special Servicer; provided, however,
notwithstanding anything herein to the contrary: (i) no party hereto shall make
any P&I Advances with respect to such Companion Loan or otherwise for the
benefit of the holder thereof; (ii) if any of the events which would result in a
Companion Loan constituting a Specially Serviced Mortgaged Loan were to occur,
then the Companion Loan and related AB Mortgage Loan shall be treated
collectively as a single Specially Serviced Mortgage Loan with the consent of
the Controlling Class Representative (so long as the Controlling Class
Representative is not an affiliate of the related Mortgage Loan Seller or the
Companion Holder), which consent shall be deemed to have been provided if the
Controlling Class Representative does not respond to a request therefore within
five Business Days of its receipt of such request, including for purposes of
application of the Servicing Standard, until all such events with respect to the
Companion Loan have ceased to exist; (iii) if any of the events which would
result in an AB Mortgage Loan constituting a Specially Serviced Mortgaged Loan
were to occur, then such AB Mortgage Loan and related Companion Loan shall be
treated collectively as a single Specially Serviced Mortgage Loan, including for
purposes of application of the Servicing Standard, until both such loans have
become Corrected Mortgage Loans; (iv) all amounts received on or with respect to
such Companion Loan and the corresponding AB Mortgage Loan or on or with respect
to any related REO Property shall be allocable between the holder of such
Companion Loan and the Trust Fund, as holder of the corresponding AB Mortgage
Loan, in accordance with the terms of the related Intercreditor Agreement, with
any amounts so allocable to the corresponding AB Mortgage Loan to be deposited
in the Certificate Account for application as contemplated by Section 3.05 (or,
if received on any related REO Property, in the REO Account for application as
contemplated by Section 3.16) and any amounts allocable to such Companion Loan
to be distributed by the Companion Paying Agent to the holder of such Companion
Loan in accordance with Section 3.26(c) below, in each case within one Business
Day of the receipt thereof or, in the case of payments to the holder of such
Companion Loan, within such longer period as is permitted by the related
Intercreditor Agreement (except that any amounts allocable under such
Intercreditor Agreement for purposes of paying or reimbursing any party hereto
or the Trust Fund for any
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Advances, interest on Advances, servicing or special servicing compensation or
Additional Trust Fund Expenses related to such Companion Loan (subject to the
provisions of the immediately following clause (v)), the corresponding AB
Mortgage Loan and/or any related REO Property, including any such items which
were previously paid out of amounts allocable to the corresponding AB Mortgage
Loan, shall be deemed to have been received and allocable to the corresponding
AB Mortgage Loan and shall be deposited into the Certificate Account for
application as contemplated by Section 3.05 (or, if received on any related REO
Property, in the REO Account for application as contemplated by Section 3.16));
(v) no Master Servicing Fees will be payable with respect to the Burbank Empire
Center Companion Loan; (vi) no Trustee Fees or Paying Agent Fees will be payable
with respect to matters affecting such Companion Loan; (vii) except to the
extent that the corresponding AB Mortgage Loan is affected or is otherwise
required by the related loan documents, this Agreement or the related
Intercreditor Agreement, no confirmation will be required of the Rating Agencies
with respect to such Companion Loan; (viii) all statements, reports and written
or electronic information forwarded by any party hereto to the Controlling Class
Representative shall also be contemporaneously forwarded to the holder of such
Companion Loan (but only to the extent that such statements, reports and other
information directly relate to such Companion Loan and the exclusive of any
information, statements or reports related to the calculation of the Option
Price for the AB Mortgage Loan); (ix) the Master Servicer shall, to the extent
permitted by the related Intercreditor Agreement, make claims for reimbursement
from the holder of the Radisson Companion Loan in connection with related
Advances, interest on Advances and other related expenses so as to minimize the
total amount of the withdrawals on the Certificate Account for such items; and
(x) in no event shall such Companion Loan be taken into account for purposes of
determining distributions on the actual Certificates. Servicing and
administration of each Companion Loan shall continue hereunder for so long as
the corresponding AB Mortgage Loan or any related REO Property is part of the
Trust Fund or provided that any amounts payable by the holder of such Companion
Loan to or for the benefit of the Trust Fund or any party hereto in accordance
with the related Intercreditor Agreement after such period remain due and owing.
(b) The servicing and administration of each AB Mortgage Loan
and the corresponding Companion Loan shall be subject to and shall be consistent
with the terms and conditions of the related Intercreditor Agreement and the
Servicing Standard notwithstanding the terms of this Agreement so long as such
terms and conditions do not conflict with the REMIC Provisions. The Trustee, the
Master Servicer and the Special Servicer each acknowledge that each AB Mortgage
Loan and its related Companion Loan shall be serviced and administered pursuant
to this Agreement and the related Intercreditor Agreement. Except with respect
to the exclusion of information related to the calculation of the Option Price
of an AB Mortgage Loan (to the extent not required to be furnished pursuant to
the terms of the related Intercreditor Agreement), in the event of conflict
between the related Intercreditor Agreement and this Agreement, the related
Intercreditor Agreement shall control.
(c) Payments of amounts allocable to a Companion Loan shall be
payable to the holder of such Companion Loan in accordance with the instructions
of such holder delivered pursuant to the terms of the related Intercreditor
Agreement, and if not specified in such Intercreditor Agreement, pursuant to
written instructions delivered to the Companion Paying Agent no later than five
Business Days prior to the related Distribution Date.
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(d) It is hereby acknowledged and agreed that, to the extent
that the holder of each Companion Loan may purchase the corresponding AB
Mortgage Loan or related REO Property out of the Trust Fund at the price and in
accordance with the terms and conditions specified in the related Intercreditor
Agreement, such right shall have priority over any provision of Section 3.18(c)
or Section 3.18(i). If an AB Mortgage Loan or REO Property is purchased by the
related Companion Holder, repurchased by the applicable Mortgage Loan Seller or
otherwise ceases to be subject to this Agreement, the related Companion Loan
will no longer be subject to this Agreement. The price paid in connection with
such purchase shall be deposited into the Certificate Account, and the Trustee,
upon receipt of a Request for Release and receipt of an Officer's Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the holder of such Companion Loan the related
Mortgage File, and shall execute and deliver such instruments of transfer or
assignment, in each case without recourse (except as provided in the related
Intercreditor Agreement), as shall be provided to it and are reasonably
necessary to vest in the holder of such Companion Loan the ownership of the
corresponding AB Mortgage Loan. In connection with such purchase, the Master
Servicer and the Special Servicer shall each deliver to the holder of such
Companion Loan the respective portion of the related Servicing File held by it.
(e) Transfers of each Companion Loan shall be governed by the
related Intercreditor Agreement. Neither the Trustee, the Master Servicer nor
the Trust Fund shall acquire a Companion Loan. If the Master Servicer has
discretion regarding the transfer of a Companion Loan under the related
Intercreditor Agreement, the Master Servicer may only consent to a transfer of
such Companion Loan with the consent of the Controlling Class Representative.
(f) For the purposes of this Agreement, receipt by the Master
Servicer or the Special Servicer of any amounts relating to an AB Mortgage Loan
or the Trust Fund's share of any amounts relating to the underlying Mortgaged
Property shall be deemed to be amounts received on behalf of the Trust Fund.
(g) The Master Servicer shall provide to each Companion Holder
any reports or notices required to be delivered to such Companion Holder
pursuant to the related Intercreditor Agreement. Any report prepared by the
Master Servicer pursuant to the terms of any Intercreditor Agreement shall also
be delivered to the Controlling Class Representative insofar as such report
relates to the related Companion Loan.
(h) In addition to the rights and benefits set forth in this
Section 3.26, each Companion Holder shall have certain rights and benefits as
set forth in Section 6.11.
(i) Notwithstanding any provision to the contrary, so long as
any interest in the Radisson C Note is held by the related Mortgagor or an
Affiliate of the related Mortgagor or any entity in which such Mortgagor has any
interest, the provisions of Section 4(l) of the Radisson Intercreditor Agreement
regarding the rights of the holder of the Radisson C Note shall apply.
SECTION 3.27 Abbey Intercreditor Agreement.
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The Master Servicer and Special Servicer shall act as Mortgage
Lender (as defined in the Abbey Intercreditor Agreement) with respect to the
Mortgage Loans referred to in the Abbey Intercreditor Agreement and shall
service such Mortgage Loans in accordance with the Abbey Intercreditor Agreement
as long as such terms and conditions do not conflict with the REMIC Provisions
and this Agreement. In the event of a conflict between this Agreement and the
Abbey Intercreditor Agreement, the Abbey Intercreditor Agreement will control.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01 Distributions.
(a) On each Distribution Date the Trustee shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account, after payment of amounts payable from the Distribution Account in
accordance with Section 3.05(b)(ii) through (vii) and deemed distributions from
REMIC I pursuant to Section 4.01(h), for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the
Senior Certificates in an amount equal to, and pro rata in
accordance with, all Distributable Certificate Interest in respect
of each Class of Senior Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the
Class A-1 Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-1 Certificates outstanding
immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of
principal, pro rata, to the Holders of the Class A-2 Certificates,
in an amount (not to exceed the Class Principal Balance of the Class
A-2 Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1 Certificates
pursuant to clause (ii) above;
(iv) after the Class Principal Balance of the Class A-2
Certificates has been reduced to zero, to distributions of
principal, pro rata, to the Holders of the Class A-3 Certificates,
in an amount (not to exceed the Class Principal Balance of the Class
A-3 Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1 Certificates and
Class A-2 Certificates pursuant to clauses (ii) and (iii) above
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(v) after the Class Principal Balance of the Class A-3
Certificates has been reduced to zero, to distributions of
principal, pro rata, to the Holders of the Class A-4 Certificates,
in an amount (not to exceed the Class Principal Balance of the Class
A-4 Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates pursuant to
clauses (ii), (iii) and (iv) above;
(vi) to distributions to the Holders of the Class A-1
Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates, pro rata in accordance with, in an amount
equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to each
such Class of Certificates and not previously reimbursed; (vii) to
distributions of interest to the Holders of the Class B Certificates
in an amount equal to all Distributable Certificate Interest in
respect of such Class of Certificates for such Distribution Date
and, to the extent not previously paid, for all prior Distribution
Dates;
(viii) after the Class Principal Balances of the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates and
Class A-4 Certificates have been reduced to zero, to distributions
of principal to the Holders of the Class B Certificates, in an
amount (not to exceed the Class Principal Balance of the Class B
Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a)).
(ix) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class B Certificates and not previously
reimbursed;
(x) to distributions of interest to the Holders of the
Class C Certificates in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for
all prior Distribution Dates;
(xi) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
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(xii) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class C Certificates and not previously
reimbursed;
(xiii) to distributions of interest to the Holders of
the Class D Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xiv) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xv) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class D Certificates and not previously
reimbursed;
(xvi) to distributions of interest to the Holders of the
Class E Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xvii) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xviii) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class E Certificates and not previously
reimbursed;
(xix) to distributions of interest to the Holders of the
Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xx) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F
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Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(xxi) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class F Certificates and not previously
reimbursed;
(xxii) to distributions of interest to the Holders of
the Class G Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxiii) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class G Certificates, in an amount (not to
exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxiv) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates and not previously
reimbursed;
(xxv) to distributions of interest to the Holders of
Class H Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvi) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to
exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxvii) to distributions to the Holders of the Class H
Certificates in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to such Class of Certificates and not
previously reimbursed;
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(xxviii) to distributions of interest to the Holders of
the Class J Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxix) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to
exceed the Class Principal Balance of the Class J Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxx) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class J Certificates and not previously
reimbursed;
(xxxi) to distributions of interest to the Holders of
the Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxii) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class K Certificates, in an amount (not to
exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxiii) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class K Certificates and not previously
reimbursed;
(xxxiv) to distributions of interest to the Holders of
the Class L Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxv) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class L Certificates, in an amount (not to
exceed the Class Principal Balance of the Class L Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof
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distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a));
(xxxvi) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class L Certificates and not previously
reimbursed;
(xxxvii) to distributions of interest to the Holders of
the Class M Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxviii) after the Class Principal Balance of the Class
L Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class M Certificates, in an amount
(not to exceed the Class Principal Balance of the Class M
Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxxix) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class M Certificates and not previously
reimbursed;
(xl) to distributions of interest to the Holders of the
Class N Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xli) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class N Certificates, in an amount (not to
exceed the Class Principal Balance of the Class N Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlii) to distributions to the Holders of the Class N
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class N Certificates and not previously
reimbursed;
(xliii) to distributions of interest to the Holders of
the Class O Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class O Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
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(xliv) after the Class Principal Balance of the Class N
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class O Certificates, in an amount (not to
exceed the Class Principal Balance of the Class O Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xlv) to distributions to the Holders of the Class O
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class O Certificates and not previously
reimbursed;
(xlvi) to make distributions to the Holders of the Class
R-II Certificates, in an amount equal to the excess, if any, of (A)
the aggregate distributions deemed made in respect of the REMIC I
Regular Interests on such Distribution Date pursuant to Section
4.01(a), over (B) the aggregate distributions made in respect of the
Regular Certificates on such Distribution Date pursuant to clauses
(i) through (xlii) above;
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates has been reduced to zero,
the payments of principal to be made as contemplated by clauses (ii), (iii),
(iv) and (v) above with respect to the Class A Certificates will be made to the
Holders of the respective Classes of such Class A Certificates up to an amount
equal to, and pro rata as among such Classes in accordance with, the respective
then outstanding Class Principal Balances of such Classes of Certificates and
without regard to the Principal Distribution Amount for such Distribution Date.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
All distributions of interest made in respect of the Class XC
and Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
and Class XP Strip Rate, as applicable, of such Component multiplied by its
Component Notional Amount, less an allocable portion of any Prepayment Interest
Shortfall, together with any amounts thereof remaining unpaid from previous
Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw from
the Distribution Account any amounts that represent Prepayment Premiums and/or
Yield Maintenance Charges actually collected on the Mortgage Loans and any REO
Loans during the related Collection Period and shall be deemed to distribute
such Prepayment Premiums and/or Yield Maintenance Charges from REMIC I to REMIC
II in respect of REMIC I Regular Interest LA-1-1 (whether or not such Class has
received all distributions of interest and principal to which it is entitled),
and then shall distribute each such Prepayment Premium and/or Yield Maintenance
Charge, as additional yield, as follows:
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(i) First, to the Holders of the respective Classes of
Regular Certificates (other than any Excluded Class thereof)
entitled to distributions of principal pursuant to Section 4.01(a)
on such Distribution Date, up to an amount equal to, and pro rata
based on, the Additional Yield and Prepayment Amounts for each such
Class of Certificates for such Distribution Date; and
(ii) Second, to the Holders of the Class XC
Certificates, to the extent of any remaining portion of such Yield
Maintenance Charges or Prepayment Premiums.
On each Distribution Date, subject, in the case of AB Mortgage
Loans, to the terms of the related Intercreditor Agreement, the Trustee shall
withdraw from the Additional Interest Account any amounts that represent (A)
Additional Interest actually collected during the related Collection Period on
the ARD Loans and any related REO Loans that are Xxxxxxx Mortgage Loans and
shall distribute such amounts among the Holders of the Class Z-I Certificates
pro rata in accordance with their respective Percentage Interests of such Class,
and (B) Additional Interest actually collected during the related Collection
Period on the ARD Loans and any related REO Loans that are Wachovia Mortgage
Loans and shall distribute such amounts among the Holders of the Class Z-II
Certificates pro rata in accordance with their respective Percentage Interests
of such Class.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Sequential Pay
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in a like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Trustee was subsequently notified in writing. If such check
is returned to the Trustee, the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The
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costs and expenses of locating the appropriate Holder and holding such funds
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If the Trustee has not,
after having taken such reasonable steps, located the related Holder by the
second anniversary of the initial sending of a check, the Trustee shall, subject
to applicable law, distribute the unclaimed funds to the Holders of the Class
R-II Certificates.
(d) Each distribution with respect to a Book-Entry Certificate
shall be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall perform their
respective obligations under a Letter of Representations among the Depositor,
the Trustee and the Initial Depository dated as of the Closing Date.
(e) The rights of the Certificateholders to receive
distributions from the proceeds of the Trust Fund in respect of the
Certificates, and all rights and interests of the Certificateholders in and to
such distributions, shall be as set forth in this Agreement. Neither the Holders
of any Class of Certificates nor any party hereto shall in any way be
responsible or liable to the Holders of any other Class of Certificates in
respect of amounts properly previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates) will be made on the
next Distribution Date, the Trustee shall, no later than five days after the
related Determination Date, mail to each Holder of record on such date of such
Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such
other location therein specified, and
(ii) no interest shall accrue on such Certificates from
and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which
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notice has been given pursuant to this Section 4.01(f) shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Trustee shall, subject to applicable law, distribute
to the Holders of the Class R-II Certificates all unclaimed funds and other
assets which remain subject thereto.
(g) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The Certificate
Registrar shall promptly provide the Paying Agent with any IRS Form W-8BEN or
W-ECI upon its receipt thereof. The consent of Certificateholders shall not be
required for such withholding. If the Trustee does withhold any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Trustee
shall indicate the amount withheld to such Certificateholders.
(h) All distributions made in respect of any Class of
Sequential Pay Certificates on each Distribution Date pursuant to Section
4.01(a) or Section 9.01 shall be deemed to have first been distributed from
REMIC I to REMIC II in respect of its Corresponding REMIC I Regular Interest set
forth in the Preliminary Statement hereto; provided, however, that distributions
of principal with respect to the Class A-1 Certificates shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of REMIC I Regular
Interest LA-1-1 until its REMIC I Principal Balance is reduced to zero, and then
to REMIC Regular Interest LA-1-2; provided further, that distributions of
principal with respect to the Class A-2 Certificates shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of REMIC I Regular
Interest LA-2-1 until its REMIC I Principal Balance is reduced to zero and then
to REMIC I Regular Interest LA-2-2 until its REMIC I Principal Balance is
reduced to zero and then to REMIC I Regular Interest LA-2-3; provided further,
that distributions of principal with respect to the Class A-3 Certificates shall
be deemed to have first been distributed from REMIC I to REMIC II in respect of
REMIC I Regular Interest LA-3-1 until its REMIC I Principal Balance is reduced
to zero and then to REMIC I Regular Interest LA-3-2 until its REMIC I Principal
Balance is reduced to zero and then to REMIC I Regular Interest LA-3-3; provided
further, that distributions of principal with respect to the Class A-4
Certificates shall be deemed to have first been distributed from REMIC I to
REMIC II in respect of REMIC I Regular Interest LA-4-1 until its REMIC I
Principal Balance is reduced to zero and then to REMIC I Regular Interest LA-4-2
until its REMIC I Principal Balance is reduced to zero and then to REMIC I
Regular Interest LA-4-3; provided further, that distributions of principal with
respect to the Class F Certificates shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I
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Regular Interest LF-1 until its REMIC I Principal Balance is reduced to
zero and then to REMIC I Regular Interest LF-2 until its REMIC I Principal
Balance is reduced to zero; provided further, that distributions of principal
with respect to the Class G Certificates shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest LG-1
until its REMIC I Principal Balance is reduced to zero and then to REMIC I
Regular Interest LG-2 until its REMIC I Principal Balance is reduced to zero;
provided further, that distributions of principal with respect to the Class H
Certificates shall be deemed to have first been distributed from REMIC I to
REMIC II in respect of REMIC I Regular Interest LH-1 until its REMIC I Principal
Balance is reduced to zero and then to REMIC I Regular Interest LH-2 until its
REMIC I Principal Balance is reduced to zero; and provided further, that
distributions of principal with respect to the Class J Certificates shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of
REMIC I Regular Interest LJ-1 until its REMIC I Principal Balance is reduced to
zero and then to REMIC I Regular Interest LJ-2 until its REMIC I Principal
Balance is reduced to zero. All distributions made in respect of the Class XC
and Class XP Certificates on each Distribution Date pursuant to Section 4.01(a)
or Section 9.01, and allocable to any particular Component of such Class of
Certificates in accordance with the last paragraph of Section 4.01(a), shall be
deemed to have first been distributed from REMIC I to REMIC II in respect of
such Component's Corresponding REMIC I Regular Interest. In each case, if such
distribution on any such Class of Regular Certificates was a distribution of
interest or principal or in reimbursement of previously allocated Realized
Losses and Additional Trust Fund Expenses in respect of such Class of Regular
Certificates, then the corresponding distribution deemed to be made on a REMIC I
Regular Interest pursuant to the preceding two sentences shall be deemed to also
be a distribution of interest or principal or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses, as the case may
be, in respect of such REMIC I Regular Interest; provided, however, with respect
to Realized Losses and Additional Trust Fund Expenses allocated to the Class A-1
Certificates, such corresponding distribution shall be deemed to be a
distribution with respect to REMIC I Regular Interest LA-1-1 and REMIC I Regular
Interest LA-1-2 allocated pro rata based on their respective REMIC I Principal
Balances; provided, further, with respect to Realized Losses and Additional
Trust Fund Expenses allocated to the Class A-2 Certificates, such corresponding
distribution shall be deemed to be a distribution with respect to REMIC I
Regular Interest L-A-2-1, REMIC I Regular Interest L-A-2-2 and REMIC Regular
Interest L-A-2-3 allocated pro rata based upon their respective REMIC I
Principal Balances; provided, further, with respect to Realized Losses and
Additional Trust Fund Expenses allocated to the Class A-3 Certificates, such
corresponding distribution shall be deemed to be a distribution with respect to
REMIC I Regular Interest L-A-3-1, REMIC I Regular Interest L-A-3-2 and REMIC I
Regular Interest L-A-3-3 allocated pro rata based upon their respective REMIC I
Principal Balances; provided, further, with respect to Realized Losses and
Additional Trust Fund Expenses allocated to the Class A-4 Certificates, such
corresponding distribution shall be deemed to be a distribution with respect to
REMIC I Regular Interest L-A-4-1, REMIC I Regular Interest L-A-4-2 and REMIC I
Regular Interest L-A-4-3 allocated pro rata based upon their respective REMIC I
Principal Balances; provided, further, with respect to Realized Losses and
Additional Trust Fund Expenses allocated to the Class F Certificates, such
corresponding distribution shall be deemed to be a distribution with respect to
REMIC I Regular Interest LF-1 and REMIC I Regular Interest LF-2 allocated pro
rata based upon their respective REMIC I Principal Balances; provided, further,
with respect to Realized Losses and Additional Trust Fund Expenses allocated to
the Class G Certificates, such
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corresponding distribution shall be deemed to be a distribution with respect to
REMIC I Regular Interest LG-1 and REMIC I Regular Interest LG-2 allocated pro
rata based upon their respective REMIC I Principal Balances; provided, further,
with respect to Realized Losses and Additional Trust Fund Expenses allocated to
the Class H Certificates, such corresponding distribution shall be deemed to be
a distribution with respect to REMIC I Regular Interest LH-1 and REMIC I Regular
Interest LH-2 allocated pro rata based upon their respective REMIC I Principal
Balances; and provided, further, with respect to Realized Losses and Additional
Trust Fund Expenses allocated to the Class J Certificates, such corresponding
distribution shall be deemed to be a distribution with respect to REMIC I
Regular Interest LJ-1 and REMIC I Regular Interest LJ-2 allocated pro rata based
upon their respective REMIC I Principal Balances. Any amounts remaining in the
Distribution Account in respect of REMIC I after the deemed distributions in
respect of the REMIC I Regular Interests shall (except as otherwise provided in
Section 9.01) be distributed by the Trustee to the Holders of the Class R-I
Certificates.
(i) On each Distribution Date, the Companion Paying Agent
(based upon a statement of the Master Servicer that specifies the amount
required to be deposited in the Companion Distribution Account and any amounts
payable to the Master Servicer from the Companion Distribution Account pursuant
to this Section 4.01(i)) shall make withdrawals and payments from the Companion
Distribution Account for the Companion Loans in the following order of priority:
(i) to pay itself (in its capacity as Master Servicer)
and the Special Servicer any accrued and unpaid Master Servicing
Fees or Special Servicing Fees with respect to the Radisson
Companion Loan and the TRW Companion Loan;
(ii) to pay the Trustee or any of its directors,
officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person pursuant to Section 8.05,
to the extent any such amounts relate solely to any Loan Pair;
(iii) to pay for the cost of the Opinions of Counsel
sought by the Trustee (A) as provided in clause (v) of the
definition of "Disqualified Organization", or (B) as contemplated by
Sections 9.02 (a)(i) and 10.01(h), to the extent any such costs
relate solely to any Loan Pair;
(iv) to pay to the Master Servicer any amounts deposited
by the Master Servicer in the Companion Distribution Account not
required to be deposited therein;
(v) on each Distribution Date, to pay all amounts
remaining in the Companion Distribution Account to the related
Companion Holder; and
(vi) to clear and terminate the Companion Distribution
Account at the termination of this Agreement pursuant to Section
9.01.
All distributions from a Companion Distribution Account
required hereunder shall be made by the Companion Paying Agent to the related
Companion Holder by wire transfer in immediately available funds to the account
of such Companion Holder or an agent therefor appearing on the Companion
Register on the related Record Date (or, if no such account so
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appears or information relating thereto is not provided at least five Business
Days prior to the related Record Date, by check sent by first-class mail to the
address of such Companion Holder or its agent appearing on the Register). Any
such account shall be located at a commercial bank in the United States.
To the extent amounts are payable to or in respect of the
Trust Fund pursuant to Section 4.01(i)(i) or (ii), the Companion Distribution
Account shall be considered an "outside reserve fund" within the meaning of the
REMIC Provisions, beneficially owned by the Companion Holder for federal income
tax purposes, who shall be taxable on all reinvestment income thereon, and who
shall be deemed to have received any amounts reimbursed from the Trust Fund to
the Companion Distribution Account.
SECTION 4.02 Statements to Certificateholders; CMSA Loan
Periodic Update File.
(a) On each Distribution Date, the Trustee shall make
available either by mail or electronically via its Internet Website to each
Certificateholder, each initial Certificate Owner and (upon written request made
to the Trustee) each subsequent Certificate Owner (as identified to the
reasonable satisfaction of the Trustee), the Depositor, the Master Servicer, the
Special Servicer, the Companion Holder, the Underwriters and each Rating Agency,
a statement (a "Distribution Date Statement"), as to the distributions made on
such Distribution Date, based solely on information provided to it by the Master
Servicer and the Special Servicer, setting forth: (i) the amount of the
distribution on such Distribution Date to the Holders of each Class of Regular
Certificates in reduction of the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution
Date to the Holders of each Class of Regular Certificates allocable
to Distributable Certificate Interest;
(iii) the amount of the distribution on such
Distribution Date to the Holders of each Class of Regular
Certificates allocable to Prepayment Premiums and/or Yield
Maintenance Charges;
(iv) the amount of the distribution on such Distribution
Date to the Holders of each Class of Regular Certificates in
reimbursement of previously allocated Realized Losses and Additional
Trust Fund Expenses;
(v) the Available Distribution Amount for such
Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in
respect of such Distribution Date pursuant to Section 4.03(a),
including, without limitation, any amounts applied pursuant to
Section 4.03(a)(ii), and the aggregate amount of xxxxxxxxxxxx X&X
Advances that had been outstanding at the close of business on the
related Determination Date and the aggregate amount of interest
accrued and payable to the Master Servicer, the Trustee or the
Fiscal Agent in respect of such xxxxxxxxxxxx X&X
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Advances in accordance with Section 4.03(d) as of the close of
business on the related Determination Date, (b) the aggregate amount
of Servicing Advances as of the close of business on the related
Determination Date and (c) the aggregate amount of all
Nonrecoverable Advances as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the
Mortgage Pool outstanding as of the close of business on the related
Determination Date;
(viii) the aggregate Stated Principal Balance of the
Mortgage Pool outstanding immediately before and immediately after
such Distribution Date;
(ix) the number, aggregate principal balance, weighted
average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans as of the close of business on the
related Determination Date;
(x) the number, aggregate unpaid principal balance (as
of the close of business on the related Determination Date) and
aggregate Stated Principal Balance (immediately after such
Distribution Date) of Mortgage Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (C) delinquent more than 89 days, (D) as to
which foreclosure proceedings have been commenced, and (E) to the
actual knowledge of the Master Servicer or Special Servicer in
bankruptcy proceedings;
(xi) as to each Mortgage Loan referred to in the
preceding clause (x) above, (A) the loan number thereof, (B) the
Stated Principal Balance thereof immediately following such
Distribution Date, and (C) a brief description of any executed loan
modification;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the
portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in connection with such
Liquidation Event;
(xiii) with respect to any REO Property included in the
Trust Fund as to which a Final Recovery Determination was made
during the related Collection Period, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds
and other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable
to distributions on the Certificates), and (C) the amount of any
Realized Loss in respect of the related REO Loan in connection with
such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular
Certificates for such Distribution Date;
(xv) any unpaid Distributable Certificate Interest in
respect of each Class of Regular Certificates after giving effect to
the distributions made on such Distribution Date;
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(xvi) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xvii) the Principal Distribution Amount for such
Distribution Date, separately identifying the respective components
thereof (and, in the case of any Principal Prepayment or other
unscheduled collection of principal received during the related
Collection Period, the loan number for the related Mortgage Loan and
the amount of such prepayment or other collection of principal);
(xviii) the aggregate of all Realized Losses incurred
during the related Collection Period and all Additional Trust Fund
Expenses incurred during the related Collection Period;
(xix) the aggregate of all Realized Losses and
Additional Trust Fund Expenses that were allocated on such
Distribution Date;
(xx) the Class Principal Balance of each Class of
Regular Certificates (other than the Class X Certificates) and the
Component Notional Amount of each Component outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances
paid to the Master Servicer, the Trustee and the Fiscal Agent during
the related Collection Period in accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing
Advances paid to the Master Servicer, the Trustee and the Fiscal
Agent during the related Collection Period in accordance with
Section 3.03(d);
(xxiv) the aggregate amount of servicing fees paid to
the Master Servicer and the Special Servicer during the related
Collection Period; and
(xxv) the loan number for each Required Appraisal Loan
and any related Appraisal Reduction Amount as of the related
Determination Date;
(xxvi) the original and then current credit support
levels for each Class of Regular Certificates;
(xxvii) the original and then current ratings known to
the Trustee for each Class of Regular Certificates;
(xxviii) the aggregate amount of Prepayment Premiums and
Yield Maintenance Charges collected during the related Collection
Period; and
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(xxix) the amounts, if any, actually distributed with
respect to the Class Z-I Certificates, Class Z-II Certificates,
Class R-I Certificates or Class R-II Certificates on such
Distribution Date.
In the case of information to be furnished pursuant to clauses
(i) through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiii), and (xxiv)
above, insofar as the underlying information is solely within the control of the
Special Servicer, the Trustee and the Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
The Trustee may rely on and shall not be responsible absent
manifest error for the content or accuracy of any information provided by third
parties for purposes of preparing the Distribution Date Statement and may affix
thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
The Trustee shall make available or shall cause to be
delivered on each Distribution Date either electronically via its Internet
Website or by first class mail to each Certificateholder, the Depositor, the
Underwriters, each Rating Agency, the Special Servicer and any other Person
designated in writing by the Depositor (by hard copy, on diskette or via such
other electronic medium as is mutually acceptable to the Trustee and the
recipient) a copy of the following nine reports or in the case of reports to
Persons designated in writing by the Depositor, any of the following nine
reports delivered to it by the Master Servicer pursuant to Section 3.12(c): (i)
the Delinquent Loan Status Report, (ii) the Historical Liquidation Report, (iii)
the Historical Loan Modification Report, (iv) the REO Status Report, (v) the
Watch List, (vi) a Comparative Financial Status Report, (vii) an Operating
Statement Analysis, (viii) an NOI Adjustment Worksheet and (ix) an Interim
Delinquent Loan Status Report. The Trustee shall make available or shall cause
to be delivered on each Distribution Date either electronically via its Internet
Website or by first class mail to each Certificateholder, each Certificate
Owner, the Mortgage Loan Sellers, the Underwriters, the Depositor, each Rating
Agency and each other Person that received a Distribution Date Statement on such
Distribution Date a copy in an electronic medium of the CMSA Loan Periodic
Update File, the CMSA Property File, the CMSA Bond File, and the CMSA Collateral
Summary File containing information regarding each Mortgaged Property most
recently received from the Master Servicer. Absent manifest error, none of the
Master Servicer or the Special Servicer shall be responsible for the accuracy or
completeness of any information supplied to it by a borrower or third party that
is included in any reports, statements, materials or information prepared or
provided by the Master Servicer or the Special Servicer, as applicable. The
Trustee shall not be responsible absent manifest error for the accuracy or
completeness of any information supplied to it for delivery pursuant to this
Section. Neither the Trustee, the Master Servicer nor the Special Servicer shall
have any obligation to verify the accuracy or completeness of any information
provided by a Mortgagor or third party.
Within a reasonable period of time after the end of each
calendar year, the Trustee shall, upon request, send to each Person who at any
time during the calendar year was a Certificateholder of record, a report
summarizing on an annual basis (if appropriate) the items
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provided to Certificateholders pursuant to clauses (i), (ii), (iii) and (iv) of
the description of "Distribution Date Statement" above and such other
information as may be required to enable such Certificateholders to prepare
their federal income tax returns. Such information shall include the amount of
original issue discount accrued on each Class of Certificates and information
regarding the expenses of the Trust Fund. Such requirement shall be deemed to be
satisfied to the extent such information is provided pursuant to applicable
requirements of the Code from time to time in force.
If any Certificate Owner does not receive through the
Depository or any of its Depository Participants any of the statements, reports
and/or other written information described above in this Section 4.02(a) that it
would otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of, or provide
electronically or cause the provision electronically of, such statements,
reports and/or other written information to such Certificate Owner upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) Not later than 12:30 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall furnish
to the Trustee, the Depositor, the Special Servicer and the Underwriters, by
electronic transmission (in the case of the Trustee) or by posting on its
Internet Website (or in such other form to which the Trustee or the Depositor,
as the case may be, and the Master Servicer may agree), an accurate and complete
CMSA Loan Periodic Update File providing the required information for the
Mortgage Loans as of such Determination Date. The Depositor shall provide the
information necessary for the CMSA Loan Setup File on the Closing Date. Not
later than 2:00 p.m. New York City time on the second Business Day preceding
each Distribution Date, the Master Servicer shall deliver to the Trustee notice
of the Discount Rate applicable to each Principal Prepayment received in the
related Collection Period.
In the performance of its obligations set forth in Section
4.05 and its other duties hereunder, the Trustee may conclusively rely on
reports provided to it by the Master Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the Master
Servicer to the Trustee pursuant to this Section 4.02(b), insofar as such
information is solely
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within the control of the Special Servicer, the Master Servicer shall have no
obligation to provide such information until it has received such information
from the Special Servicer, shall not be in default hereunder due to a delay in
providing the CMSA Loan Periodic Update File caused by the Special Servicer's
failure to timely provide any report required under this Agreement and may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer.
SECTION 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I
Advance Date, the Master Servicer shall (i) apply amounts in the Certificate
Account received after the end of the related Collection Period or otherwise
held for future distribution to Certificateholders in subsequent months in
discharge of its obligation to make P&I Advances or (ii) subject to Section
4.03(c) below, remit from its own funds to the Trustee for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made in respect of the related Distribution Date. The Master Servicer
may also make P&I Advances in the form of any combination of clauses (i) and
(ii) above aggregating the total amount of P&I Advances to be made. Any amounts
held in the Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any P&I Advance Date, the Master Servicer shall not have
made any P&I Advance required to be made on such date pursuant to this Section
4.03(a) (and shall not have delivered to the Trustee the requisite Officer's
Certificate and documentation related to a determination of nonrecoverability of
a P&I Advance), then the Trustee shall provide notice of such failure to a
Servicing Officer of the Master Servicer by facsimile transmission sent to
telecopy (000) 000-0000 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone (000) 000-0000
or (000) 000-0000 (or such alternative number provided by the Master Servicer to
the Trustee in writing) as soon as possible, but in any event before 4:00 p.m.,
New York City time, on such P&I Advance Date. If the Trustee does not receive
the full amount of such P&I Advances by 10:00 a.m., New York City time, on the
related Distribution Date, then, subject to Section 4.03(c), (i) the Trustee
shall, no later than 11:00 a.m., or the Fiscal Agent no later than 1:00 p.m.,
New York City time, on such related Distribution Date make the portion of such
P&I Advances that was required to be, but was not, made by the Master Servicer
on such P&I Advance Date, and (ii) the provisions of Sections 7.01 and 7.02
shall apply.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer, the Trustee or the Fiscal Agent in respect of any Distribution
Date shall, subject to Section 4.03(c) below, equal the aggregate of all
Periodic Payments (other than Balloon Payments) and any Assumed Scheduled
Payments, net of related Servicing Fees, in respect of the Mortgage Loans
(including, without limitation, Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) and any REO Loans on their respective Due Dates
during the related Collection Period, in each case to the extent such amount was
not paid by or on behalf of the related Mortgagor or otherwise collected
(including as net income from REO Properties) as of the close of business on the
related Determination Date; provided, that, (x) if the Periodic
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Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
or if the final maturity on any Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, and the Periodic Payment due and owing during the
extension period is less than the related Assumed Scheduled Payment, then the
Master Servicer, the Trustee or the Fiscal Agent shall, as to such Mortgage Loan
only, advance only the amount of the Periodic Payment due and owing after taking
into account such reduction (net of related Servicing Fees) in the event of
subsequent delinquencies thereon; and (y) if it is determined that an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then, with
respect to the Distribution Date immediately following the date of such
determination and with respect to each subsequent Distribution Date for so long
as such Appraisal Reduction Amount exists with respect to such Required
Appraisal Loan, the Master Servicer, the Trustee or the Fiscal Agent will be
required in the event of subsequent delinquencies to advance in respect of such
Mortgage Loan only an amount equal to the sum of (A) the amount of the interest
portion of the P&I Advance that would otherwise be required without regard to
this clause (y), minus the product of (1) such Appraisal Reduction Amount and
(2) the per annum Pass-Through Rate (i.e., for any month, one-twelfth of the
Pass-Through Rate) applicable to the Class of Certificates to which such
Appraisal Reduction Amount is allocated pursuant to Section 4.04(d) and (B) the
amount of the principal portion of the P&I Advance that would otherwise be
required without regard to this clause (y).
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate delivered to the Trustee, the Fiscal Agent
and the Depositor on or before the related P&I Advance Date, setting forth the
basis for such determination, together with any other information, including
Appraisals (the cost of which may be paid out of the Certificate Account
pursuant to Section 3.05(a)) (or, if no such Appraisal has been performed
pursuant to this Section 4.03(c), a copy of an Appraisal of the related
Mortgaged Property performed within the twelve months preceding such
determination), related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Properties, engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. On the fourth
Business Day before each Distribution Date, the Special Servicer shall report to
the Master Servicer the Special Servicer's determination as to whether each P&I
Advance made with respect to any previous Distribution Date or required to be
made with respect to such Distribution Date with respect to any Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable P&I Advance. The Master
Servicer shall be entitled to conclusively rely on such determination. The
Trustee and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Master Servicer that a P&I Advance, if made, would be a
Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee and the
Fiscal Agent, as applicable, shall rely on the Master Servicer's determination
that the P&I Advance would be a Nonrecoverable Advance if the Trustee or the
Fiscal Agent determines that it does not have sufficient time to make such
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determination); provided, however, that if the Master Servicer has failed to
make a P&I Advance for reasons other than a determination by the Master Servicer
that such P&I Advance would be a Nonrecoverable Advance, the Trustee or the
Fiscal Agent shall make such Advance within the time periods required by Section
4.03(a) unless the Trustee or the Fiscal Agent, as the case may be, in good
faith, makes a determination prior to the times specified in Section 4.03(a)
that such P&I Advance would be a Nonrecoverable Advance. The Trustee in
determining whether or not a P&I Advance previously made is, or a proposed P&I
Advance, if made, would be, a Nonrecoverable Advance shall be subject to the
standards applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer,
the Trustee or the Fiscal Agent of any P&I Advance out of the Certificate
Account pursuant to Section 3.05(a), subject to the next sentence, the Master
Servicer shall be entitled to pay itself, the Trustee or the Fiscal Agent, as
the case may be, out of any amounts then on deposit in the Certificate Account,
interest at the Reimbursement Rate (or, with respect to the AB Mortgage Loans
and related Companion Loans, the rate provided in the related Intercreditor
Agreement) in effect from time to time, compounded annually, accrued on the
amount of such P&I Advance (to the extent made with its own funds) from the date
made to but not including the date of reimbursement such interest to be payable
first, subject to the terms of the related Intercreditor Agreement with respect
to any Loan Pair, out of late payment charges and Penalty Interest received on
the related Mortgage Loan or REO Property during the Collection Period in which
such reimbursement is made and subject to the terms of the related Intercreditor
Agreement with respect to any Loan Pair, then from general collections on the
Mortgage Loans then on deposit in the Certificate Account; provided, however,
that no interest shall accrue on any P&I Advance made with respect to a Mortgage
Loan if the related Periodic Payment is received on or prior to the due date of
such Mortgage Loan or prior to the expiration of any applicable grace period. To
the extent the Master Servicer receives late payment charges or Penalty Interest
on a Mortgage Loan for which interest on Advances related to such Mortgage Loan
has been paid from general collections on deposit in the Certificate Account
during the preceding 12-month period and not previously reimbursed, the Master
Servicer shall deposit in the Certificate Account, on or prior to the P&I
Advance Date following the collection of such late payment charges or Penalty
Interest, an amount equal to the lesser of (i) the amount of late payment
charges or Penalty Interest received on such Mortgage Loan or (ii) the amount of
interest paid to the Master Servicer on the related P&I Advance for such
Mortgage Loan during such 12-month period for which the Trust Fund has not been
previously reimbursed. The Master Servicer shall reimburse itself, the Trustee
or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby
as soon as practicable after funds available for such purpose have been received
by the Master Servicer, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the corresponding Late
Collection, or as to which any Periodic Payment in respect of any Mortgage Loan,
the Due Date of which is on the tenth day of a calendar month, was received by
the Master Servicer on or prior to the related P&I Advance Date.
(e) In no event shall the Master Servicer, the Trustee or the
Fiscal Agent make a P&I Advance with respect to any Companion Loan.
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SECTION 4.04 Allocation of Realized Losses and Additional
Trust Fund Expenses; Allocation of Certificate Deferred Interest; Allocation of
Appraisal Reduction Amounts.
(a) On each Distribution Date, following all distributions to
be made on such date pursuant to Section 4.01, the Trustee shall allocate to the
respective Classes of Sequential Pay Certificates as follows the aggregate of
all Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-off Date through the end of the related Collection Period
and in any event that were not previously allocated pursuant to this Section
4.04(a) on any prior Distribution Date, but only to the extent that (i) the
aggregate Certificate Principal Balance of the Sequential Pay Certificates as of
such Distribution Date (after taking into account all of the distributions made
on such Distribution Date pursuant to Section 4.01), exceeds (ii) the aggregate
Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date: first, to the Class O
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero, second, to the Class N Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero, third, to the Class M
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero, fourth to the Class L Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifth, to the Class K
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; sixth, to the Class J Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; seventh, to the Class H
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eighth, to the Class G Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; ninth, to the Class F
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; tenth, to the Class E Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eleventh, to the Class D
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; twelfth, to the Class C Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; thirteenth, to the Class B
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; and fourteenth pro rata (based on remaining Class Principal
Balances) to the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates and Class A-4 Certificates until the Class Principal Balances
thereof are reduced to zero. Any allocation of Realized Losses and Additional
Trust Fund Expenses to a Class of Regular Certificates shall be made by reducing
the Class Principal Balance thereof by the amount so allocated. All Realized
Losses and Additional Trust Fund Expenses, if any, allocated to a Class of
Regular Certificates shall be allocated among the respective Certificates of
such Class in proportion to the Percentage Interests evidenced thereby. All
Realized Losses and Additional Trust Fund Expenses, if any, that have not been
allocated to the Regular Certificates as of the Distribution Date on which the
aggregate Certificate Principal Balance of such Regular Certificates has been
reduced to zero, shall be deemed allocated to the Residual Certificates.
(b) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(h), the REMIC I Principal Balance of Corresponding REMIC I Regular
Interests (after taking account of such deemed distributions) shall be reduced
as a result of Realized Losses and Additional Trust Fund Expenses to equal the
Class Principal Balance of the Class of Corresponding Certificates that will be
outstanding immediately following such Distribution Date; provided, that with
respect to
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the application of reductions of the aggregate REMIC I Principal Balances of
REMIC I Regular Interests LA-1-1 and LA-1-2 to the Class Principal Balance of
the Class A-1 Certificates that will be outstanding immediately following such
Distribution Date, each such reduction shall be allocated pro rata between such
REMIC I Regular Interests based on their respective REMIC I Principal Balances;
provided further, that with respect to the application of reductions of the
aggregate REMIC I Principal Balances of REMIC I Regular Interests XX-0-0, XX-0-0
xxx XX-0-0 to the Class Principal Balance of the Class A-2 Certificates that
will be outstanding immediately following such Distribution Date, each such
reduction shall be allocated pro rata among such REMIC I Regular Interests based
upon their respective REMIC I Principal Balances; provided further, that with
respect to the application of reductions of the aggregate REMIC I Principal
Balances of REMIC I Regular Interests XX-0-0, XX-0-0 xxx XX-0-0 to the Class
Principal Balance of the Class A-3 Certificates that will be outstanding
immediately following such Distribution Date, each such reduction shall be
allocated pro rata among such REMIC I Regular Interests based upon their
respective REMIC I Principal Balances; provided further, that with respect to
the application of reductions of the aggregate REMIC I Principal Balances of
REMIC I Regular Interests XX-0-0, XX-0-0 xxx XX-0-0 to the Class Principal
Balance of the Class A-4 Certificates that will be outstanding immediately
following such Distribution Date, each such reduction shall be allocated pro
rata among such REMIC I Regular Interests based upon their respective REMIC I
Principal Balances; provided further, that with respect to the application of
reductions of the aggregate REMIC I Principal Balances of REMIC I Regular
Interests LF-1 and LF-2 to the Class Principal Balance of the Class F
Certificates that will be outstanding immediately following such Distribution
Date, each such reduction shall be allocated pro rata between such REMIC I
Regular Interests based upon their respective REMIC I Principal Balances;
provided further, that with respect to the application of reductions of the
aggregate REMIC I Principal Balances of REMIC I Regular Interests LG-1 and LG-2
to the Class Principal Balance of the Class G Certificates that will be
outstanding immediately following such Distribution Date, each such reduction
shall be allocated pro rata between such REMIC I Regular Interests based upon
their respective REMIC I Principal Balances; provided further, that with respect
to the application of reductions of the aggregate REMIC I Principal Balances of
REMIC I Regular Interests LH-1 and LH-2 to the Class Principal Balance of the
Class H Certificates that will be outstanding immediately following such
Distribution Date, each such reduction shall be allocated pro rata between such
REMIC I Regular Interests based upon their respective REMIC I Principal
Balances; provided further, that with respect to the application of reductions
of the aggregate REMIC I Principal Balances of REMIC I Regular Interests LJ-1
and LJ-2 to the Class Principal Balance of the Class J Certificates that will be
outstanding immediately following such Distribution Date, each such reduction
shall be allocated pro rata between such REMIC I Regular Interests based upon
their respective REMIC I Principal Balances; .
(c) On any Distribution Date, the amount of any Mortgage
Deferred Interest will be allocated as Certificate Deferred Interest to each
outstanding Class of Sequential Pay Certificates in reverse alphabetical order
(except with respect to the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, which amounts shall be applied pro rata (based on remaining Class
Principal Balances) to such Certificates), in each case up to the respective
Accrued Certificate Interest for each such Class of Certificates for such
Distribution Date. On each such Distribution Date, the Certificate Principal
Balance of each Class of Certificates to which Certificate Deferred Interest has
been allocated will be increased by the amount of Certificate
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Deferred Interest allocated to such Class. The amount of Certificate Deferred
Interest allocated to any Class of Sequential Pay Certificates will be allocated
to, and will increase the REMIC I Principal Balances of the Corresponding REMIC
I Regular Interests; provided, however, allocations to REMIC I Regular Interests
LA-1-1 and LA-1-2 shall be applied pro rata based upon their respective REMIC I
Principal Balances, provided, further, that allocations to REMIC I Regular
Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be applied pro rata based upon their
respective REMIC I Principal Balances, provided, further, that allocations to
REMIC I Regular Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be applied pro rata
based upon their respective REMIC I Principal Balances, provided, further, that
allocations to REMIC I Regular Interests XX-0-0, XX-0-0 xxx XX-0-0 shall be
applied pro rata based upon their respective REMIC I Principal Balances,
provided, further, that allocations to REMIC I Regular Interests LF-1 and LF-2
shall be applied pro rata based upon their respective REMIC I Principal
Balances, provided, further, that allocations to REMIC I Regular Interests LG-1
and LG-2 shall be applied pro rata based upon their respective REMIC I Principal
Balances, provided, further, that allocations to REMIC I Regular Interests LH-1
and LH-2 shall be applied pro rata based upon their respective REMIC I Principal
Balances, and provided, further, that allocations to REMIC I Regular Interests
LJ-1 and LJ-2 shall be applied pro rata based upon their respective REMIC I
Principal Balances, in each case up to the Pass-Through Rate of the
Corresponding Certificates.
(d) Any Appraisal Reduction Amounts will be allocated only for
purposes of determining the amount of P&I Advances with respect to the related
Mortgage Loan, as follows: to the Class Principal Balance of 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 and Class B Certificates, in that order, up to the amount of their
respective Class Principal Balances. On any Distribution Date, an Appraisal
Reduction Amount that otherwise would be allocated to a Class of Certificates
will be allocated to the next most subordinate Class to the extent that the
Class Principal Balance on such Distribution Date for such Class of Certificates
(prior to taking the Appraisal Reduction Amount into account) is less than the
Appraisal Reduction Amount for the Distribution Date. The Master Servicer shall
report to the Trustee on or before each Determination Date all Appraisal
Reduction Amounts and the Trustee shall report to the Master Servicer no later
than 10:00 a.m. on the related P&I Advance Date the Pass-Through Rates necessary
to calculate the allocation required by this Section 4.04(d).
SECTION 4.05 Calculations.
The Trustee shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Trustee shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Trustee shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Trustee of such amounts
shall, in the absence of manifest error, be presumptively deemed to be correct
for all purposes hereunder.
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SECTION 4.06 Use of Agents.
The Master Servicer, the Trustee or the Fiscal Agent may at
its own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Trustee or the
Fiscal Agent from any of such obligations or liabilities, and the Master
Servicer, the Trustee or the Fiscal Agent, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility).
ARTICLE V
THE CERTIFICATES
SECTION 5.01 The Certificates.
(a) The Certificates will be substantially in the respective
forms attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Agreement, as may be required to comply
with any law or with rules or regulations pursuant thereto, or with the rules of
any securities market in which the Certificates are admitted to trading, or to
conform to general usage. The Certificates will be issuable in registered form
only; provided, however, that in accordance with Section 5.03 beneficial
ownership interests in the Regular Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Regular
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or initial Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $25,000 in the case of the
Registered Certificates and not less than $100,000 in the case of Non-Registered
Certificates (other than the Residual Certificates and the Class Z-I and Class
Z-II Certificates), and in each such case in integral multiples of $1 in excess
thereof. The Residual Certificates, Class Z-I Certificates and Class Z-II
Certificates shall have no minimum denomination and shall each be represented by
a single definitive certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
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such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02 Registration of Transfer and Exchange of
Certificates.
(a) At all times during the term of this Agreement, there
shall be maintained at the office of the Certificate Registrar a Certificate
Register in which, subject to such reasonable regulations as the Certificate
Registrar may prescribe, the Certificate Registrar (located as of the Closing
Date at LaSalle Bank National Association, 000 X. XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Trustee is
hereby initially appointed (and hereby agrees to act in accordance with the
terms hereof) as Certificate Registrar for the purpose of registering
Certificates and transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and the Master Servicer, any other
bank or trust company to act as Certificate Registrar under such conditions as
the predecessor Certificate Registrar may prescribe, provided that the
predecessor Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be
made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective 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
G-1 hereto, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 hereto or as
Exhibit G-3 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), 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. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any
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other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Non-Registered Certificate without
registration or qualification. Any Holder of a Non-Registered Certificate
desiring to effect such a transfer shall, and upon acquisition of such a
Certificate shall be deemed to have agreed to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
In connection with transfer of the Non-Registered
Certificates, the Depositor shall furnish upon request of a Certificateholder or
Certificate Owner to such Holder or Certificate Owner and any prospective
purchaser designated by such Certificateholder or Certificate Owner the
information required to be delivered under paragraph (d)(4) of Rule 144A of the
Securities Act.
Notwithstanding the foregoing, for so long as any
Non-Registered Certificate is a Book-Entry Certificate, (a) each prospective
transferor of such Certificate shall be deemed to have represented to the
Trustee, the Depositor and the transferee of such Certificate the information
set forth on Exhibit G-1 upon or prior to such transfer and (b) each prospective
transferee of such Certificate shall be deemed to have represented to the
Trustee, the Depositor and the transferor of such Certificate the information
set forth on Exhibit G-2 or Exhibit G-3 upon or prior to such transfer.
(c) No transfer of a Certificate or any interest therein shall
be made to any "employee benefit plan" subject to Title I of ERISA, any "plan"
described by Section 4975(e)(1) of the Code or any other retirement plan or
other employee benefit plan or arrangement subject to applicable federal, state
or local law ("Similar Law") materially similar to the foregoing provisions of
ERISA or the Code, or any entity deemed to hold plan assets of the foregoing by
reason of such a plan's investment in such entity (each, a "Plan") unless (A) in
the case of a Certificate other than a Residual Certificate, a Class Z-I
Certificate or a Class Z-II Certificate, the transferee is an insurance company
general account and (1) it is eligible for, and satisfies all the requirements
of, exemptive relief under Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 ("PTCE 95-60"), including the requirement that
there is no "plan" (as defined in PTCE 95-60) with respect to which the amount
of such general account's reserves and liabilities for contracts held by or on
behalf of such plan and all other plans maintained by the same employer (or any
"affiliate" thereof as defined in PTCE 95-60) or by the same employee
organization exceeds 10% of the total of all reserves and liabilities of such
general account (as determined under PTCE 95-60), and will continue to satisfy
such requirements thereafter, (2) each Plan invested in such general account
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and (3) it will obtain from each of its transferees
that is an insurance company general account a written representation that such
transferee satisfies the requirements described in the preceding clauses (1) and
(2) and a written agreement of the type described in this clause (3), or (B) in
the case of a Certificate other than an ERISA Restricted Certificate, a Residual
Certificate, a Class Z-I Certificate or a Class Z-II Certificate, the transferee
(1) qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and (2) satisfies all the requirements of
the Exemptions as in effect at the time of such transfer. Each Person who
acquires a Certificate in Definitive Certificate form shall be required to
certify in writing in the form attached as Exhibit H hereto that it meets the
foregoing conditions and that it will not
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transfer such Certificate in violation of the foregoing, and each Person who
acquires a Certificate in Book-Entry Certificate form shall be deemed to have
represented that the foregoing conditions are satisfied and that it will not
transfer such Certificate in violation of the foregoing.
(d) (i) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Trustee under clause
(ii)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Registrar under clause (ii)(B) below to
negotiate the terms of any mandatory disposition and to execute all instruments
of Transfer and to do all other things necessary in connection with any such
sale. The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(1) Each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be
a Permitted Transferee and shall promptly notify the
Master Servicer, the Trustee and the Certificate
Registrar of any change or impending change in its
status as a Permitted Transferee.
(2) In connection with any proposed Transfer
of any Ownership Interest in a Residual Certificate,
the Certificate Registrar shall require delivery to
it, and shall not register the Transfer of any
Residual Certificate until its receipt of an
affidavit and agreement substantially in the form
attached hereto as Exhibit I (a "Transfer Affidavit
and Agreement"), from the proposed Transferee, in
form and substance satisfactory to the Certificate
Registrar, and upon which the Certificate Registrar
may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the
Certificate Registrar to the contrary, conclusively
rely, representing and warranting, among other
things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership
Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it
will endeavor to remain a Permitted Transferee, that
it has historically paid its debts as they have come
due, intends to pay its debts as they come due in the
future and intends to pay all taxes associated with
the Residual Certificate as they come due and that it
has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(3) Notwithstanding the delivery of a
Transfer Affidavit and Agreement by a proposed
Transferee under clause (B) above, if a Responsible
Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed
Transferee shall be effected.
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(4) Each Person holding or acquiring any
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 I-2 stating that, among
other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(5) Each Person holding or acquiring an
Ownership Interest in a Residual Certificate, by
purchasing an Ownership Interest in such Certificate,
agrees to give the Master Servicer and the Trustee
written notice that it is a "pass-through interest
holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a
"pass-through interest holder".
(ii) (A) If any purported Transferee shall become a
Holder of a Residual Certificate in violation of the
provisions of this Section 5.02(d), then the last preceding
Holder of such Residual Certificate that was in compliance
with the provisions of this Section 5.02(d) shall be restored,
to the extent permitted by law, to all rights as Holder
thereof retroactive to the date of registration of such
Transfer of such Residual Certificate. None of the Trustee,
the Master Servicer or the Certificate Registrar shall be
under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not
permitted by this Section 5.02(d) 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.
(B) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such
Residual Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, the Certificate
Registrar shall have the right, without notice to the Holder
or any prior Holder of such Residual Certificate, to cause the
transfer of such Residual Certificate to a Permitted
Transferee on such terms as the Certificate Registrar may
choose. Such purported Transferee shall promptly endorse and
deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such Permitted
Transferee may be the Certificate Registrar itself or any
Affiliate of the Certificate Registrar. Any 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
Trustee to such purported Transferee. The terms and conditions
of any sale under this clause (ii)(B) shall be determined in
the sole discretion of the Certificate Registrar, and the
Certificate Registrar shall not be liable to any
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Person having an Ownership Interest in a Residual Certificate
as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available
to the Internal Revenue Service and to those Persons specified
by the REMIC Provisions any information available to it which
is necessary to compute any tax imposed as a result of the
Transfer of an Ownership Interest in a Residual Certificate to
any Person who is a Disqualified Organization or agent
thereof, including the information described in Treasury
Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual
Certificate, and the Master Servicer and the Special Servicer
shall furnish to the Certificate Registrar all information in
its possession necessary for the Certificate Registrar to
discharge such obligation. The transferor of such Ownership
Interest shall be responsible for the reasonable compensation
of the Certificate Registrar, the Master Servicer and the
Special Servicer for providing such information.
(iv) The provisions of this Section 5.02(d) set forth
prior to this clause (iv) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Certificate Registrar and the Master Servicer the
following:
(1) written confirmation 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
(2) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master
Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trust Fund), to the
effect that doing so will not cause either REMIC I or REMIC II
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 REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted
Transferee.
(e) Subject to the preceding provisions of this Section 5.02,
upon surrender for registration of transfer of any Certificate at the offices of
the Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be
exchanged for other Certificates of authorized denominations of the same Class
of a like aggregate Percentage Interest, upon surrender of the Certificates to
be exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate
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and deliver the Certificates which the Certificateholder making the exchange is
entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or
exchange of Certificates, but the Certificate Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange
shall be physically canceled by the Certificate Registrar, and the Certificate
Registrar shall dispose of such canceled Certificates in accordance with its
standard procedures.
(j) Upon request, the Certificate Registrar shall provide to
the Master Servicer, the Special Servicer and the Depositor notice of each
transfer of a Certificate and shall provide to each such Person with an updated
copy of the Certificate Register.
SECTION 5.03 Book-Entry Certificates.
(a) Each Class of Regular Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in Section 5.03(c) below, transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and transfer their respective Ownership Interests
in and to such Certificates through the book-entry facilities of the Depository
and, except as provided in Section 5.03(c) below, shall not be entitled to
definitive, fully registered Certificates ("Definitive Certificates") in respect
of such Ownership Interests. All transfers by Certificate Owners of their
respective Ownership Interests in the Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing each such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer,
the Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if
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they are made with respect to different Certificate Owners. The Trustee may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and shall give notice to the Depository of
such record date.
(c) If (i)(A) the Depositor advises the Trustee and the
Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein,
neither the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04 Mutilated, Destroyed, Lost or Stolen
Certificates.
If (i) any mutilated Certificate is surrendered to the
Certificate Registrar, or the Certificate Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate, and (ii)
there is delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee and the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the
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applicable REMIC created hereunder, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
SECTION 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them 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 pursuant to Section
4.01 and may treat the person whose name each Certificate is registered as of
the date of determination as the owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER, THE
CONTROLLING CLASS REPRESENTATIVE, AND THE COMPANION PAYING AGENT
SECTION 6.01 Liability of Depositor, Master Servicer and
Special Servicer.
The Depositor, the Master Servicer and the Special Servicer
shall be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, the
Master Servicer and the Special Servicer herein.
SECTION 6.02 Merger, Consolidation or Conversion of Depositor
or Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor and the
Special Servicer shall each keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement, and the Master
Servicer shall keep in full effect its existence and rights as a national
banking association under the laws of the United States.
The Depositor, the Master Servicer or the Special Servicer may
be merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which may be limited to all or
substantially all of its assets related to commercial mortgage loan servicing)
to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business (which may
be limited to the commercial loan servicing business) of the Depositor, the
Master Servicer or the Special Servicer, shall be the successor of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the
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parties hereto, anything herein to the contrary notwithstanding; provided,
however, that no successor or surviving Person shall succeed to the rights of
the Master Servicer or the Special Servicer unless (i) as evidenced in writing
by the Rating Agencies, such succession will not result in qualification,
downgrading or withdrawal of the ratings then assigned by the Rating Agencies to
any Class of Certificates and (ii) such successor or surviving Person makes the
applicable representations and warranties set forth in Section 3.23.
SECTION 6.03 Limitation on Liability of Depositor, Master
Servicer and Special Servicer.
None of the Depositor, the Master Servicer or the Special
Servicer shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Companion Holders for any action taken, or not taken,
in good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Master
Servicer or the Special Servicer against any liability to the Trust Fund, the
Trustee, the Certificateholders or the Companion Holders for the breach of a
representation, warranty or covenant made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer may rely in
good faith on any document of any kind which, prima facie, is properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, the Master Servicer, the Special Servicer and any director, member,
manager, officer, employee or agent of the Depositor, the Master Servicer or the
Special Servicer shall be indemnified and held harmless by the Trust Fund
against any loss, liability or reasonable expense incurred in connection with
this Agreement or the Certificates (including, without limitation, the
distribution or posting of reports or other information as contemplated by this
Agreement), other than any loss, liability or expense: (i) specifically required
to be borne by such party without right of reimbursement pursuant to the terms
hereof (including without limitation, those expenses set forth in Section
3.11(b) and the last sentence of the definition of Servicing Advances); (ii)
incurred in connection with any breach of a representation, warranty or covenant
made herein; or (iii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. None of the
Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and, unless it is
specifically required hereunder to bear the costs of such legal action, in its
opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Certificate Account as
provided in Section 3.05(a). In no event shall the Master Servicer or the
Special Servicer be liable or responsible for any action taken or omitted to
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be taken by the other of them or by the Depositor, the Trustee or any
Certificateholder, subject to the provisions of Section 8.05(b).
SECTION 6.04 Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its 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 (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall have the right to resign at any other time provided that (i) a
willing successor thereto has been found by the Master Servicer or Special
Servicer, as applicable, (ii) each of the Rating Agencies confirms in writing
that the successor's appointment will not result in a withdrawal, qualification
or downgrade of any rating or ratings assigned to any Class of Certificates,
(iii) the resigning party pays all costs and expenses in connection with such
transfer, and (iv) the successor accepts appointment prior to the effectiveness
of such resignation. Neither the Master Servicer nor the Special Servicer shall
be permitted to resign except as contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other
Person, or, except as provided in Sections 3.22 and 4.06, delegate to or
subcontract with, or authorize or appoint any other Person to perform any of the
duties, covenants or obligations to be performed by it hereunder. If, pursuant
to any provision hereof, the duties of the Master Servicer or the Special
Servicer are transferred to a successor thereto, the Master Servicing Fee or the
Special Servicing Fee, as the case may be, that accrues pursuant hereto from and
after the date of such transfer shall be payable to such successor.
SECTION 6.05 Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford
the Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such
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information constitutes proprietary information or is subject to a privilege
under applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or Special Servicer hereunder or exercise the
rights of the Master Servicer and the Special Servicer hereunder; provided,
however, that neither the Master Servicer nor the Special Servicer shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee and, further provided, that the Depositor may not
exercise any right pursuant to Section 7.01 to terminate the Master Servicer or
the Special Servicer as a party to this Agreement. The Depositor shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06 Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer
shall each furnish such reports, certifications and information as are
reasonably requested by the Trustee in order to enable it to perform its duties
hereunder.
SECTION 6.07 Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08 Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.
The Depositor, the Master Servicer, and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09 Designation of Special Servicer by the
Controlling Class.
The Holder or Holders (or, in the case of Book-Entry
Certificates, the Certificate Owner or Certificate Owners) of the Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
may at any time and from time to time designate a Person meeting the
requirements set forth in Section 6.04 (including, without limitation, Rating
Agency confirmation) to serve as Special Servicer hereunder and to replace any
existing Special Servicer or any Special Servicer that has resigned or otherwise
ceased to serve as Special Servicer; provided that such Holder or Holders (or
such Certificate Owner or Certificate Owners, as the case may be) shall pay all
costs related to the transfer of servicing if the Special Servicer is replaced
other than due to an Event of Default. Such Holder or Holders (or such
Certificate Owner or
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Certificate Owners, as the case may be) may also select a Controlling Class
Representative that may advise and direct the Special Servicer and whose
approval is required for certain actions, as described herein. Such Holder or
Holders (or such Certificate Owner or Certificate Owners, as the case may be)
shall so designate a Person to serve as replacement Special Servicer by the
delivery to the Trustee, the Master Servicer and the existing Special Servicer
of a written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit J-1. If such Holder or
Holders (or such Certificate Owner or Certificate Owners, as the case may be)
have not replaced the Special Servicer within 30 days of such Special Servicer's
resignation or the date such Special Servicer has ceased to serve in such
capacity, the Trustee shall designate a successor Special Servicer meeting the
requirements set forth in Section 6.04. Any designated Person shall become the
Special Servicer, subject to satisfaction of the other conditions set forth
below, on the date that the Trustee shall have received written confirmation
from all of the Rating Agencies that the appointment of such Person will not
result in the qualification, downgrading or withdrawal of the rating or ratings
assigned to one or more Classes of the Certificates. The appointment of such
designated Person as Special Servicer shall also be subject to receipt by the
Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit J-2, executed by the designated Person, and (2) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 6.09 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the Acknowledgment of Proposed Special Servicer the designated Person shall be
bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that the resigning Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, and it shall continue to be entitled to
the benefits of Section 6.03 notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer's responsibilities and rights hereunder, including, without limitation,
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the Certificate Account or the REO
Account or delivered to the Master Servicer or that are thereafter received with
respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or
the Special Servicer or an Affiliate of the Special Servicer may become the
Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing
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Standard, and (ii) if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Trustee a written notice that (a) states
that it is delivered pursuant to this Section 6.10, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer, and (c) describes in reasonable detail the action that
the Master Servicer or the Special Servicer proposes to take. The Trustee, upon
receipt of such notice, shall forward it to the Certificateholders (other than
the Master Servicer and its Affiliates or the Special Servicer and its
Affiliates, as appropriate), together with such instructions for response as the
Trustee shall reasonably determine. If at any time Certificateholders holding
greater than 50% of the Voting Rights of all Certificateholders (calculated
without regard to the Certificates beneficially owned by the Master Servicer or
its Affiliates or the Special Servicer or its Affiliates) shall have failed to
object in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice within thirty (30) days, such action shall be deemed to comply with, but
not modify, the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
SECTION 6.11 The Controlling Class Representative.
The Controlling Class Representative will be entitled to
advise the Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event and except as set forth
in, and in any event subject to, the second paragraph of this Section 6.11, the
Special Servicer will not be permitted to take any of the following actions as
to which the Controlling Class Representative has objected in writing within ten
Business Days of being notified thereof, which notification with respect to the
action described in clauses (vi) and (viii) below shall be copied by the Special
Servicer to the Master Servicer (provided that if such written objection has not
been received by the Special Servicer within such ten Business Day period, then
the Controlling Class Representative's approval will be deemed to have been
given):
(i) any foreclosure upon or comparable conversion (which
may include acquisitions 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 of a Money Term of a Mortgage Loan
or a Companion Loan other than a modification consisting of the
extension of the maturity date of a Mortgage Loan for one year or
less;
(iii) any proposed sale of an REO Property (other than
in connection with the termination of the Trust Fund or pursuant to
Section 3.18) for less than the
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outstanding principal balance of the related REO Loan, plus accrued
interest (exclusive of Penalty Interest and Additional Interest);
(iv) any determination to bring an REO Property into
compliance with applicable environmental laws or to otherwise
address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional
collateral for a Mortgage Loan unless required by the underlying
loan documents;
(vi) any waiver of a "due-on-sale" clause or
"due-on-encumbrance" clause (other than assumptions) that do not
relate to the Burbank Empire Center Mortgage Loan;
(vii) any acceptance of an assumption agreement
releasing a borrower from liability under a Mortgage Loan;
(viii) any determination that an insurance-related
default is an Acceptable Insurance Default or that earthquake or
terrorism insurance is not available at commercially reasonable
rates; and
(ix) any waiver of insurance required under the related
Mortgage Loan.
In addition, the Controlling Class Representative may direct
the Special Servicer to take, or to refrain from taking, such other actions as
the Controlling Class Representative may deem advisable or as to which provision
is otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any applicable
law, the terms of any Mortgage Loan, any provision of this Agreement or the
REMIC Provisions (and the Special Servicer shall disregard any such direction or
objection), including without limitation the Special Servicer's obligation to
act in accordance with the Servicing Standard, or expose the Master Servicer,
the Special Servicer, the Trust Fund, the Trustee or the Fiscal Agent to
liability, or materially expand the scope of the Special Servicer or the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to
the Certificateholders for any action taken, or for refraining from the taking
of any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that the Controlling Class Representative will not
be protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Controlling Class Representative may act solely in the
interests of the
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Holders of the Controlling Class, that the Controlling Class Representative does
not have any duties to the Holders of any Class of Certificates other than the
Controlling Class, that the Controlling Class Representative shall not be deemed
to have been negligent or reckless, or to have acted in bad faith or engaged in
willful misfeasance, by reason of its having acted solely in the interests of
the Holders of the Controlling Class, and that the Controlling Class
Representative shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Controlling Class
Representative or any director, officer, employee, agent or principal thereof
for having so acted.
Notwithstanding any other provision contained in this
Agreement but subject to the Servicing Standard, with respect to any Wachovia AB
Mortgage Loan, during such times as the conditions set forth in the related
Intercreditor Agreement have been satisfied and subject to the limitations
contained in such Intercreditor Agreement (including without limitation, that no
Threshold Event has occurred and is continuing under the related Intercreditor
Agreement), the rights of the Controlling Class Representative to control and
consent to the servicing and administration of the related Wachovia AB Mortgage
Loan set forth in this Agreement (including, without limitation, Section 3.21(d)
and Section 6.11) shall not apply with respect to such Wachovia AB Mortgage
Loan, but rather the Companion Holder (or, in the case of the Radisson Companion
Loan, the holder of the Radisson B Note) shall instead have the rights set forth
in such Intercreditor Agreement under Sections 4(e) and 4(f) and shall have the
right to appoint the Operating Advisor to the extent set forth in the related
Intercreditor Agreement; provided, however, that during such times as such
conditions are not satisfied (including in the event that a Threshold Event has
occurred and is continuing), the rights of the Companion Holder (including the
right to appoint the Operating Advisor) under Sections 4(e) and 4(f)of the
Intercreditor Agreement shall not be effective and the Companion Holder shall
not be entitled (during such time) to exercise such rights and the Controlling
Class Representative during such times shall instead have the rights with
respect to controlling and consenting to the servicing and administration of the
related Wachovia AB Mortgage Loan set forth in this Agreement (including without
limitation, as set forth in Section 3.21(d) and Section 6.11).
SECTION 6.12 Companion Paying Agent.
(a) The Master Servicer shall be the initial Companion Paying
Agent hereunder. The Companion Paying Agent undertakes to perform such duties
and only such duties as are specifically set forth herein. The Companion Paying
Agent shall promptly make available all reports delivered to it under this
Agreement to the Companion Holder.
(b) No provision of this Agreement shall be construed to
relieve the Companion Paying Agent from liability for its own negligent failure
to act, bad faith or its own willful misfeasance; provided, however, that the
duties and obligations of the Companion Paying Agent shall be determined solely
by the express provisions of this Agreement, the Companion Paying Agent shall
not be liable except for the performance of such duties and obligations, no
implied covenants or obligations shall be read into this Agreement against the
Companion Paying Agent and, in the absence of bad faith on the part of the
Companion Paying Agent, the Companion Paying Agent may conclusively rely, as to
the truth and correctness of the statements or conclusions expressed therein,
upon any resolutions, certificates, statements, opinions, reports,
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documents, orders or other instrument furnished to the Companion Paying Agent by
any Person and which on their face do not contradict the requirements of this
Agreement.
(c) Upon the resignation or removal of the Master Servicer
pursuant to Section 6.04 of this Agreement, the Companion Paying Agent shall be
deemed simultaneously to resign or be removed.
(d) This Section shall survive the termination of this
Agreement or the resignation or removal of the Companion Paying Agent, as
regards rights accrued prior to such resignation or removal.
SECTION 6.13 Companion Register. The Companion Paying Agent
shall maintain a register (the "Companion Register") on which it will record the
names and address of, wire transfer instructions for, and taxpayer
identification number of the Companion Holders from time to time, to the extent
such information is provided in writing to it by the Companion Holder. The name
and address of each of the initial Companion Holders are listed on Exhibit CC
hereto. Each Companion Holder hereby agrees to inform the Companion Paying Agent
and the Master Servicer, if not the same, of its name, address, wiring
instructions and taxpayer identification number and of any change thereof and of
any subsequent Companion Holder upon any transfer of any Companion Loan. Upon
the sale of any Companion Loan or portion thereof, the transferring Companion
Holder shall inform the Companion Paying Agent and the Master Servicer, if not
the same, in writing that such transfer has taken place and provide the
Companion Paying Agent and the Master Servicer, if not the same, with the name,
address, wiring instructions and taxpayer identification number of the
transferee. In the event a Companion Holder transfers a Companion Loan without
notice to the Companion Paying Agent and the Master Servicer or the Companion
Holder does not inform the Companion Paying Agent of any change of Companion
Holder or change to the Master Servicer, neither the Companion Paying Agent nor
the Master Servicer shall have any liability resulting from such failure to
inform the Companion Holder and the Master Servicer, including any misdirected
payment in respect of the related Companion Loan and neither the Companion
Paying Agent nor the Master Servicer shall have any obligation to recover and
redirect such payment.
The Companion Paying Agent shall promptly provide the name and
address of any Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such names
and addresses.
ARTICLE VII
DEFAULT
SECTION 7.01 Events of Default.
(a) "Event of Default", wherever used herein, means any one of
the following events:
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(i) any failure by the Master Servicer to deposit into
the Certificate Account, or to deposit into, or remit to the Trustee
for deposit into, the Distribution Account, any amount (other than a
P&I Advance) required to be so deposited or remitted by it under
this Agreement, which failure, in the case of deposits and
remittances to the Distribution Account, continues unremedied until
10:00 a.m., New York City time on the related Distribution Date,
provided further, however, that to the extent the Master Servicer
does not timely make such remittances, the Master Servicer shall pay
the Trustee for the account of the Trustee interest on any amount
not timely remitted at the Prime Rate from and including the
applicable required remittance date to but not including the date
such remittance is actually made; or
(ii) any failure by the Special Servicer to deposit into
the REO Account or to deposit into, or to remit to the Master
Servicer for deposit into, the Certificate Account, any amount
required to be so deposited or remitted under this Agreement
provided, however, that the failure to deposit or remit such amount
shall not be an Event of Default if such failure is remedied within
one Business Day and in any event on or prior to the related
Distribution Date; or
(iii) any failure by the Master Servicer to timely make
any Servicing Advance required to be made by it hereunder, which
Servicing Advance remains unmade for a period of five Business Days
following the date on which notice shall have been given to the
Master Servicer, as the case may be, by the Trustee as provided in
Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or
the Special Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the
Master Servicer or the Special Servicer, as the case may be,
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 or the Special Servicer, as the case may be, by any
other party hereto or the Master Servicer or the Special Servicer,
as the case may be (with a copy to each other party hereto), by the
Holders of Certificates entitled to at least 25% of the Voting
Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or the Master Servicer or the Special Servicer,
as the case may be (with a copy to each other party hereto), by the
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Holders of Certificates entitled to at least 25% of the Voting
Rights, provided, however, that with respect to any failure which is
not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure
period of thirty (30) days so long as the Master Servicer or the
Special Servicer, as the case may be, has commenced to cure within
the initial 30-day period and provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(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, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall
admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment
for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(ix) the consolidated net worth of the Master Servicer
and of its direct or indirect parent, determined in accordance with
generally accepted accounting principles, shall decline to less than
$15,000,000; or
(x) the Trustee shall have received a written notice
from Xxxxx'x (which the Trustee shall promptly forward to the Master
Servicer or the Special Servicer, as applicable), to the effect that
if the Master Servicer or the Special Servicer, as applicable,
continues to act in such capacity, the rating or ratings on one or
more Classes of Certificates will be downgraded or withdrawn if such
Master Servicer or the Special Servicer, as applicable, is not
replaced; provided, however, that the Master Servicer or the Special
Servicer, as applicable, shall have sixty (60) days to resolve such
matters to the satisfaction of Xxxxx'x (or such longer time period
as may be agreed in writing by Xxxxx'x) prior to the replacement of
the Master Servicer or the Special Servicer or the downgrade of any
Class of Certificates; or
(xi) the Master Servicer or the Special Servicer, as
applicable, (i) is not an approved Master Servicer or Special
Servicer, as applicable, by S&P or (ii) is not rated at least "CMS3"
or "CSS3", as applicable, by Xxxxx'x; or
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(xii) the Master Servicer shall fail to remit to the
Trustee for deposit into the Distribution Account, on any P&I
Advance Date, the full amount of P&I Advances required to be made on
such date, which failure continues unremedied until 10:00 a.m. New
York City time on the next Business Day succeeding such P&I Advance
Date; provided, however, that to the extent the Master Servicer does
not timely make such remittances, the Master Servicer shall pay the
Trustee for the account of the Trustee interest on any amount not
timely remitted at the Prime Rate from and including the applicable
required remittance date to but not including the date such
remittance is actually made.
(b) If any Event of Default shall occur with respect to the
Master Servicer or the Special Servicer (in either case, for purposes of this
Section 7.01(b), the "Defaulting Party") and shall be continuing, then, and in
each and every such case, so long as such Event of Default shall not have been
remedied, the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 25% of the Voting Rights, the Trustee shall,
by notice in writing to the Defaulting Party (with a copy of such notice to each
other party hereto and the Rating Agencies), terminate all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund, other than its rights as a Certificateholder hereunder. From and after the
receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section 7.01(b),
it shall promptly (and in any event no later than ten Business Days subsequent
to its receipt of the notice of termination) provide the Trustee with all
documents and records, including those in electronic form, requested thereby to
enable the Trustee or a successor Master Servicer or Special Servicer to assume
the Master Servicer's or Special Servicer's, as the case may be, functions
hereunder, and shall cooperate with the Trustee in effecting the termination of
the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, (i) the
immediate transfer to the Trustee or a successor Master or Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, a Servicing Account or a Reserve Account (if the Master
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or (ii) the transfer within two
Business Days to the Trustee or a successor Special Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Special Servicer to the REO Account, the Certificate Account, a Servicing
Account or a Reserve Account or delivered to the Master Servicer (if the Special
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts accrued or owing to it under this
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Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any cost or expenses in
connection with any actions to be taken by the Master Servicer, the Special
Servicer or the Trustee pursuant to this paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. If and to the extent that the Defaulting Party has not reimbursed such
costs and expenses, the Trustee shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of and at the expense of
the Trust Fund. For purposes of this Section 7.01 and of Section 7.03(b), the
Trustee shall not be deemed to have knowledge of an event which constitutes, or
which with the passage of time or notice, or both, would constitute an Event of
Default described in clauses (i)-(viii) of subsection (a) above unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless notice
of any event which is in fact such an Event of Default is received by the
Trustee and such notice references the Certificates, the Trust Fund or this
Agreement.
(c) If the Master Servicer is terminated solely due to an
Event of Default under Section 7.01(a)(xi) or (xii) and if the terminated Master
Servicer provides the Trustee with the appropriate "request for proposal"
materials within the five Business Days after such termination, then the Trustee
shall promptly thereafter (using such "request for proposal" materials provided
by the terminated Master Servicer) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as Master Servicer hereunder in accordance with
Sections 6.02 and 7.02 (any such Person so qualified, a "Qualified Bidder") or,
if three (3) Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the termination of Master Servicer. The Trustee shall solicit bids (i) on
the basis of such successor Master Servicer retaining all Sub-Servicers to
continue the primary servicing of the Mortgage Loans pursuant to the terms of
the respective Sub-Servicing Agreements and to enter into a Sub-Servicing
Agreement with the terminated Master Servicer to service each of the Mortgage
Loans not subject to a Sub-Servicing Agreement at a servicing fee rate per annum
equal to the Master Servicing Fee Rate minus 2.5 basis points per Mortgage Loan
serviced (each, a "Servicing-Retained Bid") and (ii) on the basis of terminating
each Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate
in accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
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Upon the assignment and acceptance of the master servicing
rights hereunder to and by the Successful Bidder, the Trustee shall remit or
cause to be remitted (i) if the successful bid was a Servicing-Retained Bid, to
the terminated Master 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) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special
Servicer resigns pursuant to Section 6.04 or receives a notice of termination
pursuant to Section 7.01, the Trustee shall, unless a successor is appointed
pursuant to Section 6.04, be the successor in all respects to the Master
Servicer or the Special Servicer, as the case may be, in its capacity as such
under this Agreement and the transactions set forth or provided for herein and
shall have all (and the former Master Servicer or the Special Servicer, as the
case may be, shall cease to have any) of the responsibilities, duties and
liabilities (except as provided in the next sentence) of the Master Servicer or
the Special Servicer, as the case may be, arising thereafter, including, without
limitation, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances, the unmade P&I Advances that
gave rise to such Event of Default; provided, that if the Master Servicer is the
resigning or terminated party, and if after the Closing Date the Trustee is
prohibited by law or regulation from obligating itself to make P&I Advances (as
evidenced by an Opinion of Counsel delivered to the Depositor and the Rating
Agencies) the Trustee shall not be obligated to make such P&I Advances and
provided, further, that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's, as the case may be,
failure to provide information or monies required by Section 7.01 shall not be
considered a default by the Trustee hereunder. Notwithstanding anything contrary
in this Agreement, the Trustee shall in no event be held responsible or liable
with respect to any of the representations and warranties of the resigning or
terminated party (other than the Trustee) or for any losses incurred by such
resigning or terminated party pursuant to Section 3.06 hereunder nor shall the
Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above
and subject to its obligations under Section 3.22(d) and 7.01(b), the Trustee
may, if it shall be unwilling in its sole discretion to so act as either Master
Servicer or Special Servicer, as the case may be, or shall, if it is unable to
so act as either Master Servicer or Special Servicer, as the case may be, or
shall, if the Trustee is not approved as a master servicer or a special
servicer, as the case may be, by any of the Rating Agencies or if the Holders of
Certificates entitled to at least
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51% of the Voting Rights so request in writing to the Trustee, promptly appoint,
subject to the approval of each of the Rating Agencies (as evidenced by written
confirmation therefrom to the effect that the appointment of such institution
would not cause the qualification, downgrading or withdrawal of the then current
rating on any Class of Certificates) or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
that meets the requirements of Section 6.02 (including, without limitation,
rating agency confirmation); provided, however, that in the case of a resigning
or terminated Special Servicer, such appointment shall be subject to the rights
of the Holders of Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class to designate a successor pursuant to Section
6.09. Except with respect to an appointment provided below, no appointment of a
successor to the Master Servicer or the Special Servicer hereunder shall be
effective until the assumption of the successor to such party of all its
responsibilities, duties and liabilities under this Agreement. Pending
appointment of a successor to the Master Servicer or the Special Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided.
Notwithstanding the above, the Trustee shall, if the Master Servicer is the
resigning or terminated party and the Trustee is prohibited by law or regulation
from making P&I Advances, promptly appoint any established mortgage loan
servicing institution that has a net worth of not less than $15,000,000 and is
otherwise acceptable to each Rating Agency (as evidenced by written confirmation
therefrom to the effect that the appointment of such institution would not cause
the qualification, downgrading or withdrawal of the then current rating on any
Class of Certificates), as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder (including, without limitation, the obligation to
make P&I Advances), which appointment will become effective immediately. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
resigning or terminated party hereunder. Such successor and the other parties
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the
occurrence of any event which constitutes or, with notice or lapse of time or
both, would constitute an Event of Default and (ii) five days after a
Responsible Officer of the Trustee has notice of the occurrence of such an
event, the Trustee shall notify the Depositor and all Certificateholders and the
Rating Agencies of such occurrence, unless such default shall have been cured.
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SECTION 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) , (ix), (x) or (xii) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. No such
waiver shall extend to any subsequent or other Event of Default or impair any
right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of waiving
any Event of Default pursuant to this Section 7.04, Certificates registered in
the name of the Depositor or any Affiliate of the Depositor shall be entitled to
Voting Rights with respect to the matters described above.
SECTION 7.05 Additional Remedies of Trustee Upon Event of
Default.
During the continuance of any Event of Default, so long as
such Event of Default shall not have been remedied, the Trustee, in addition to
the rights specified in Section 7.01, shall have the right, in its own name and
as trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default. Under no circumstances shall the rights provided to the Trustee
under this Section 7.05 be construed as a duty or obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01 Duties of Trustee
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiver of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If an Event of Default occurs and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Agreement, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs. Any permissive right of the Trustee contained in
this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement (other than the Mortgage
Files, the review of which is specifically governed by the terms of Article II),
shall
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examine them to determine whether they conform to the requirements of this
Agreement to the extent specifically set forth herein. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee shall take such action as it deems appropriate to have the
instrument corrected. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor or the Master Servicer or
the Special Servicer, and accepted by the Trustee, in good faith, pursuant to
this Agreement.
(c) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and
after the curing of all such Events of Default which may have
occurred, the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read into
this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Trustee and conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts if it
was required to do so;
(iii) The Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of Holders of
Certificates entitled to at least 25% of the Voting Rights relating
to the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities
afforded to the Trustee hereunder shall also be available to it in
its capacity as Authenticating Agent, Certificate Registrar, REMIC
Administrator and Custodian.
SECTION 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(a) the Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(c) The Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in Section
10.01 or 10.02, to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee, shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; provided, however, that nothing contained herein shall, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs;
(d) The Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee, of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee, may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the Trustee, shall remain
responsible for all acts and omissions of such agents or attorneys within the
scope of their employment to the same extent as it is responsible for its own
actions and omissions hereunder;
(g) The Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor; and
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(h) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as to compliance
with any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s) and/or
Opinions of Counsel described in said Article applicable with respect to changes
in registration of record ownership of Certificates in the Certificate Register
and to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
SECTION 8.03 Trustee and Fiscal Agent Not Liable for Validity
or Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other
than the statements attributed to the Trustee in Article II and Section 8.15 and
the signature of the Certificate Registrar and the Authenticating Agent set
forth on each outstanding Certificate, shall be taken as the statements of the
Depositor or the Master Servicer or the Special Servicer, as the case may be,
and neither the Trustee nor the Fiscal Agent assumes any responsibility for
their correctness. Except as set forth in Section 8.15, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or of any
Certificate (other than as to the signature of the Trustee set forth thereon) or
of any Mortgage Loan or related document. The Trustee and the Fiscal Agent shall
not be accountable for the use or application by the Depositor of any of the
Certificates issued to it or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Master Servicer or the Special Servicer. The Trustee and the
Fiscal Agent shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Master Servicer or the Special
Servicer, and accepted by the Trustee in good faith, pursuant to this Agreement.
SECTION 8.04 Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee or
the Fiscal Agent, in its individual or any other capacity, may become the owner
or pledgee of Certificates with the same rights (except as otherwise provided in
the definition of "Certificateholder") it would have if it were not the Trustee
or such agent.
SECTION 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from
the general funds on deposit in the Distribution Account as provided in Section
3.05(b) and in the Companion Distribution Account as provided in Section
4.01(i), prior to any distributions to be made therefrom on such date, and pay
to itself all earned but unpaid Trustee Fees, as
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compensation for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder. The Trustee Fee (which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee and any director, officer, employee,
affiliate, agent or "control" person within the meaning of the Securities Act of
1933 of the Trustee shall be entitled to be indemnified for and held harmless by
the Trust Fund against any loss, liability or reasonable "out-of-pocket" expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with this Agreement, the Mortgage
Loans or the Certificates or any act of the Master Servicer or the Special
Servicer taken on behalf of the Trustee as provided for herein, provided, that
such expense constitutes an "unanticipated expense" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii); provided, further, that neither
the Trustee, nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) any liability
specifically required to be borne thereby pursuant to the terms hereof, or (2)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of its negligent disregard of such obligations and
duties, or as may arise from a breach of any representation, warranty or
covenant of the Trustee made herein. The provisions of this Section 8.05(b)
shall survive any resignation or removal of the Trustee and appointment of a
successor trustee.
SECTION 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association, a
bank, a trust company or a corporation organized and doing business under the
laws of the United States of America or any State thereof or the District of
Columbia, authorized under such laws to exercise trust powers, having a combined
capital and surplus of at least $100,000,000 and subject to supervision or
examination by a federal or state banking authority. If such association, bank,
trust company or corporation 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 association, bank, trust company or corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published. Subject to Section 8.18, the Trustee shall also be an
entity with a long term unsecured debt rating of at least "AA" by S&P and "Aa2"
by Xxxxx'x (determined without regard to pluses or minuses) or such other rating
that shall not result in the qualification, downgrading or withdrawal of the
rating or ratings assigned to one or more Classes of the Certificates by any
Rating Agency as confirmed in writing. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07; provided, that if the Trustee shall cease to be so eligible
because its combined capital and surplus is no longer at least $100,000,000 or
its long-term unsecured debt rating no longer conforms to the requirements of
the immediately preceding sentence, and if the Trustee proposes to the other
parties hereto to enter into an agreement with (and reasonably acceptable to)
each of them, and if in light of such agreement the Trustee's continuing to act
in such capacity would not (as evidenced in writing by
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each Rating Agency) cause any Rating Agency to qualify, downgrade or withdraw
any rating assigned thereby to any Class of Certificates, then upon the
execution and delivery of such agreement the Trustee shall not be required to
resign, and may continue in such capacity, for so long as none of the ratings
assigned by the Rating Agencies to the Certificates is qualified, downgraded or
withdrawn thereby. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Master Servicer,
the Special Servicer and their respective Affiliates but, except to the extent
permitted or required by Section 7.02, shall not be an "Affiliate" (as such term
is defined in Section III of PTE 2000-58) of the Master Servicer, the Special
Servicer, any sub-servicer, the Underwriters, the Depositor, or any obligor with
respect to Mortgage Loans constituting more than 5.0% of the aggregate
authorized principal balance of the Mortgage Loans as of the date of the initial
issuances of the Certificates or any "Affiliate" (as such term is defined in
Section III of PTE 2000-58) of any such person.
SECTION 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders at their
respective addresses set forth in the Certificate Register. Upon receiving such
notice of resignation, the Master Servicer shall promptly appoint a successor
trustee meeting the requirements in Section 8.06 and acceptable to the Depositor
and the Rating Agencies by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee, and to the successor trustee. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer and the Certificateholders by the Master Servicer. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee of its property shall be appointed,
or any public officer shall take charge or control of the Trustee of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the Master Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely deliver any report to be delivered by the Trustee
pursuant to Section 4.02 and such failure shall continue unremedied for a period
of five days, or if the Trustee fails to make distributions required pursuant to
Section 3.05(b), 4.01 or 9.01, then the Depositor may remove the Trustee and
appoint a successor trustee, if necessary, acceptable to the Master Servicer and
the Rating Agencies (as evidenced by written confirmation therefrom to the
effect that the appointment of such institution would not cause the
qualification, downgrading or withdrawal of the then current rating on any Class
of Certificates) by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor Trustee. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer and
the Certificateholders by the Depositor.
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(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee, pursuant to any of the provisions of this Section 8.07
shall not become effective until acceptance of appointment by the successor
trustee, as provided in Section 8.08.
SECTION 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
8.07 shall execute, acknowledge and deliver to the Depositor, the Master
Servicer, the Special Servicer and to its predecessor trustee, an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee herein. The predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a third-party Custodian, which Custodian shall
become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor trustee all such
rights, powers, duties and obligations, and to enable the successor trustee to
perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided
in this Section 8.08, unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06 and the Rating
Agencies have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09 Merger or Consolidation of Trustee.
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Any entity into which the Trustee may be merged or converted
or with which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible under
the provisions of Section 8.06 and the Rating Agencies have provided
confirmation pursuant to such Section, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
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(d) Any separate trustee or co-trustee may, at any time,
constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall cease to exist, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under
this Section 8.10 shall not relieve the Trustee of its duties and
responsibilities hereunder.
SECTION 8.11 Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. The
initial Custodian shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12 Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or
more Authenticating Agents, which shall be authorized to act on behalf of the
Trustee in authenticating Certificates. The Trustee shall cause any such
Authenticating Agent to execute and deliver to the Trustee an instrument in
which such Authenticating Agent shall agree to act in such capacity, in
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accordance with the obligations and responsibilities herein. Each Authenticating
Agent must be organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to do a trust business,
have a combined capital and surplus of at least $15,000,000, and be subject to
supervision or examination by federal or state authorities. Each Authenticating
Agent shall be subject to the same obligations, standard of care, protection and
indemnities as would be imposed on, or would protect, the Trustee hereunder. The
appointment of an Authenticating Agent shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of the Authenticating Agent. If LaSalle Bank National
Association is removed as Trustee, then it shall be terminated as Authenticating
Agent. If the Authenticating Agent (other than LaSalle Bank National
Association) resigns or is terminated, the Trustee shall appoint a successor
Authenticating Agent which may be the Trustee or an Affiliate thereof. In the
absence of any other Person appointed in accordance herewith acting as
Authenticating Agent, the Trustee hereby agrees to act in such capacity in
accordance with the terms hereof. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Trustee.
(b) Any Person into which any 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 any
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of any 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) Any Authenticating Agent may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall given written
notice of such appointment to the Master Servicer, the Certificate Registrar and
the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. 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 Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13 Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, any Certificateholder and to the
OTS, the FDIC and any other
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banking or insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Trustee designated by it. Upon request and with the consent of the
Depositor and at the cost of the requesting Party, the Trustee shall provide
copies of such documentation to the Depositor, any Certificateholder and to the
OTS, the FDIC and any other bank or insurance regulatory authority that may
exercise authority over any Certificateholder.
SECTION 8.14 Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or
more REMIC Administrators, which shall be authorized to act on behalf of the
Trustee in performing the functions set forth in Sections 3.17, 10.01 and 10.02
herein. The Trustee shall cause any such REMIC Administrator to execute and
deliver to the Trustee an instrument in which such REMIC Administrator shall
agree to act in such capacity, with the obligations and responsibilities herein.
The appointment of a REMIC Administrator shall not relieve the Trustee from any
of its obligations hereunder, and the Trustee shall remain responsible and
liable for all acts and omissions of the REMIC Administrator. Each REMIC
Administrator must be acceptable to the Trustee and must be organized and doing
business under the laws of the United States of America or of any State and be
subject to supervision or examination by federal or state authorities. In the
absence of any other Person appointed in accordance herewith acting as REMIC
Administrator, the Trustee hereby agrees to act in such capacity in accordance
with the terms hereof. If LaSalle Bank National Association is removed as
Trustee, then LaSalle Bank National Association shall be terminated as REMIC
Administrator.
(b) Any Person into which any REMIC Administrator may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion, or consolidation to which any REMIC
Administrator shall be a party, or any Person succeeding to the corporate agency
business of any REMIC Administrator, shall continue to be the REMIC
Administrator without the execution or filing of any paper or any further act on
the part of the Trustee or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving
at least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC
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Administrator shall have responsibility or liability for any action taken by it
as such at the direction of the Trustee.
SECTION 8.15 Representations, Warranties and Covenants of
Trustee.
The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(a) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States.
(b) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms of this Agreement by
the Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in a material breach of, any
material agreement or other material instrument to which it is a party or by
which it is bound.
(c) Except to the extent that the laws of certain
jurisdictions in which any part of the Trust Fund may be located require that a
co-trustee or separate trustee be appointed to act with respect to such property
as contemplated by Section 8.10, the Trustee has the full power and authority to
carry on its business as now being conducted and to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
the terms hereof (including with respect to any advancing obligations
hereunder), subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally and the rights of creditors of banks, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(e) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Trustee's good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations under this
Agreement.
(f) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to the
Trustee, would prohibit the Trustee from entering into this Agreement or, in the
Trustee's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Trustee to perform its obligations under
this Agreement.
(g) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery and
performance by the
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Trustee of or compliance by the Trustee with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and is
effective.
SECTION 8.16 Reports to the Securities and Exchange
Commission; Available Information.
The Trustee shall prepare for filing, and execute, on behalf
of the Trust Fund, and file with the Securities and Exchange Commission, (i)
each Distribution Date Statement on Form 8-K within 15 days after each
Distribution Date in each month, (ii) before March 31 of each year, beginning
March 31, 2003, a Form 10-K and (iii) any and all reports, statements and
information respecting the Trust Fund and/or the certificates required to be
filed on behalf of the Trust Fund under the Exchange Act as the Trustee may be
directed by the Depositor, until directed in writing by the Depositor to
discontinue such filings; provided that any such additional information referred
to in clause (iii) above shall be delivered to the Trustee in the format
required for electronic filing via the XXXXX system. For any filings pursuant to
the previous sentence that occur after the first anniversary of the Closing
Date, the Trustee shall receive a fee agreed upon by the Trustee and the
Depositor in a separate fee agreement. Upon such filing with the Securities and
Exchange Commission, the Trustee shall promptly deliver to the Depositor and the
Master Servicer a copy of any such executed report, statement or information.
The Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests to, or requests for other
appropriate exemptive relief from, the Securities and Exchange Commission
regarding the usual and customary exemption from certain reporting requirements
granted to issuers of securities similar to the Certificates. The Depositor
agrees to indemnify and hold harmless the Trustee with respect to any liability,
cost or expenses, including reasonable attorneys' fees, arising from the
Trustee's execution of such reports, statements and information that contain
errors or omissions or is otherwise misleading, provided, however, that if the
indemnification provided for herein is invalid or unenforceable, then the
Depositor shall contribute to the amount paid by the Trustee as a result of such
liability in such amount as is necessary to limit the Trustee's responsibility
for any such payment to any amount resulting from its own negligence or willful
misconduct. The Trustee shall have no responsibility to determine whether or not
any filing may be required and shall not have any responsibility to review or
confirm in any way the accuracy or the sufficiency of the contents of any such
filing.
SECTION 8.17 Maintenance of Mortgage File.
Except for the release of items in the Mortgage File
contemplated by this Agreement, including, without limitation, as necessary for
the enforcement of the holder's rights and remedies under the related Mortgage
Loan, the Trustee covenants and agrees that it shall maintain each Mortgage File
in the State of Illinois, and that it shall not move any Mortgage File outside
the State of Illinois, other than as specifically provided for in this
Agreement, unless it shall first obtain and provide, at the expense of the
Trustee, an Opinion of Counsel to the Depositor and the Rating Agencies to the
effect that the Trustee's first priority interest in the Mortgage Notes has been
duly and fully perfected under the applicable laws and regulations of such other
jurisdiction.
SECTION 8.18 Appointment of Fiscal Agent.
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(a) Insofar as the Trustee would not otherwise satisfy the
rating requirements of Section 8.06, the Trustee may appoint, at the Trustee's
own expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. The Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA-" from S&P and Fitch (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with respect to any
Class of Regular Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)).
(b) To the extent that the Trustee is required, pursuant to
the terms of this Agreement, to make any Advance, whether as successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent shall make such Advance when and as required by the
terms of this Agreement on behalf of the Trustee as if such Fiscal Agent were
the Trustee hereunder. To the extent that the Fiscal Agent makes an Advance
pursuant to this Section 8.18 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) Notwithstanding anything contained in this Agreement to
the contrary, the Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities to which the Trustee is
entitled hereunder (including, without limitation, pursuant to Sections 8.05(b))
as if it were the Trustee, except that all fees of the Fiscal Agent shall be
borne by the Trustee, and neither the Trustee nor such Fiscal Agent shall be
entitled to reimbursement therefor from any of the Trust, the Depositor, the
Master Servicer or the Special Servicer.
(d) The obligations of the Fiscal Agent set forth in this
Section 8.18 or otherwise pursuant to this Agreement shall exist only for so
long as the Trustee that appointed it shall act as Trustee hereunder and the
Fiscal Agent shall automatically be removed in the event of the resignation or
removal of the Trustee. The Fiscal Agent may resign or be removed by the Trustee
only if and when the existence of the Fiscal Agent is no longer necessary for
such Trustee to satisfy the eligibility requirements of Section 8.06; provided
that the Fiscal Agent shall be deemed to have resigned at such time as the
Trustee that appointed it resigns or is removed as Trustee hereunder (in which
case the responsibility for appointing a successor Fiscal Agent in accordance
with this Section 8.18(d) shall belong to the successor Trustee insofar as such
appointment is necessary for such successor Trustee to satisfy the eligibility
requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto
and the Certificateholders in writing of the appointment resignation or removal
of the Fiscal Agent.
(f) The parties hereto hereby agree that ABN AMRO Bank N.V.
shall be the initial Fiscal Agent hereunder for the purposes of exercising and
performing the obligations and duties imposed upon the Fiscal Agent in this
Agreement. The Fiscal Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement.
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ARTICLE IX
TERMINATION
SECTION 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder of all Mortgage Loans and each REO Property remaining in REMIC
I at a price equal to (1) the aggregate Purchase Price of all the Mortgage Loans
included in REMIC I, plus (2) the appraised value of each REO Property, if any,
included in REMIC I, such appraisal to be conducted by an Independent Appraiser
mutually agreed upon by the Master Servicer, the Special Servicer and the
Trustee, minus (3) if the purchaser is the Master Servicer, the aggregate amount
of unreimbursed Advances made by the Master Servicer, together with any interest
accrued and payable to the Master Servicer in respect of unreimbursed Advances
in accordance with Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing
Fees remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase), and (B) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or REO Property remaining in REMIC I, and (ii) to the
Trustee, the Master Servicer, the Special Servicer and the officers, directors,
employees and agents of each of them of all amounts which may have become due
and owing to any of them hereunder; provided, however, that in no event shall
the Trust Fund 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.
The obligations and responsibilities under this Agreement of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent and the Companion Paying Agent shall terminate with respect to any
Companion Loan to the extent (i) its related AB Mortgage Loan has been paid in
full or is no longer part of the Trust Fund and (ii) no amounts payable by the
related Companion Holder to or for the benefit of the Trust Fund or any party
hereto in accordance with the related Intercreditor Agreement remain due and
owing.
The Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder may at its option elect to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1.00% of the aggregate
Cut-off Date Balances of the Mortgage Loans as of the Closing Date, and (ii) the
Majority Subordinate Certificateholder shall not have the right to effect such a
purchase if, within 30 days following the Majority Subordinate
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Certificateholder's delivery of a notice of election pursuant to this paragraph,
the Master Servicer or the Special Servicer shall give notice of its election to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I
and shall thereafter effect such purchase in accordance with the terms hereof.
The Special Servicer shall not have the right to effect such a purchase if,
within 30 days following the Special Servicer's delivery of a notice of election
pursuant to this paragraph, the Master Servicer shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I and shall thereafter effect such purchase in accordance with the
terms hereof. If the Trust Fund is to be terminated in connection with the
Master Servicer's, the Special Servicer's or the Majority Subordinate
Certificateholder's purchase of all of the Mortgage Loans and each REO Property
remaining in REMIC I, the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder, as applicable, shall deliver to the Trustee for
deposit in the Distribution Account not later than the P&I Advance Date relating
to the Distribution Date on which the final distribution on the Certificates is
to occur an amount in immediately available funds equal to the above-described
purchase price. In addition, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such P&I
Advance Date from the Certificate Account pursuant to the first paragraph of
Section 3.04(b), together with any other amounts on deposit in the Certificate
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposit has been made, the Trustee shall release or cause to be
released to the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder, as applicable, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder, as applicable, as shall be
necessary to effectuate transfer of the Mortgage Loans and REO Properties to the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder (or their respective designees), as applicable.
Notice of any termination shall be given promptly by the
Trustee by letter to Certificateholders mailed (a) if such notice is given in
connection with the Master Servicer's, the Special Servicer's or the Majority
Subordinate Certificateholder's purchase of the Mortgage Loans and each REO
Property remaining in REMIC I, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates or (b) otherwise during the month of such final distribution on
or before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable
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to any Person in accordance with clauses (ii) through (vi) of Section 3.05(b),
including any portion thereof that represents Prepayment Premiums and Yield
Maintenance Charges, shall be (i) deemed distributed in respect of the REMIC I
Regular Interests and distributed to the Class R-I Certificates in respect of
the REMIC I Residual Interest in accordance with Section 4.01(b) and Section
4.01(h) and (ii) distributed to the REMIC II Certificates in the order of
priority set forth in Section 4.01(a) and Section 4.01(b), in each case, to the
extent of remaining available funds.
On or after the Final Distribution Date, upon presentation and
surrender of the Class Z-I Certificates, the Trustee shall distribute to the
Class Z-I Certificateholders any amount then on deposit in the Additional
Interest Account that was paid on a Xxxxxxx Mortgage Loan. On or after the Final
Distribution Date, upon presentation and surrender of the Class Z-II
Certificates, the Trustee shall distribute to the Class Z-II Certificateholders
any amount then on deposit in the Additional Interest Account that was paid on a
Xxxxxxx Mortgage Loan or Wachovia Mortgage Loan.
Any funds not distributed to any Holder or Holders of
Certificates of such Class on such Distribution Date because of the failure of
such Holder or Holders to tender their Certificates shall, on such date, be set
aside and held uninvested in trust and credited to the account or accounts of
the appropriate non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
SECTION 9.02 Additional Termination Requirements.
(a) If the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder purchase all of the Mortgage Loans and
each REO Property remaining in REMIC I as provided in Section 9.01, the Trust
Fund (and, accordingly, REMIC I and REMIC II) shall be terminated in accordance
with the following additional requirements, unless the Person effecting the
purchase obtains at its own expense and delivers to the Trustee, an Opinion of
Counsel, addressed to the Trustee, to the effect that the failure of the Trust
Fund to comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on "prohibited transactions" of REMIC I or REMIC II as
defined in Section 860F of the Code or cause REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
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(i) the Trustee shall specify the first day in the
90-day liquidation period in a statement attached to the final Tax
Return for each of REMIC I and REMIC II pursuant to Treasury
Regulations Section 1.860F-1;
(ii) during such 90-day liquidation period and at or
prior to the time of making of the final payment on the
Certificates, the Trustee shall sell all of the assets of REMIC I to
the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder, as applicable, for cash; and
(iii) at the time of the making of the final payment on
the Certificates, the Trustee shall distribute or credit, or cause
to be distributed or credited, to the Certificateholders in
accordance with Section 9.01 all cash on hand (other than cash
retained to meet claims), and each of REMIC I and REMIC II shall
terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof
hereby agree to authorize the Trustee to specify the 90-day liquidation period
for each of REMIC I and REMIC II, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01 REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC
I and REMIC II as a REMIC under the Code and, if necessary, under applicable
state law. Such election will be made on Form 1066 or other appropriate federal
or state Tax Returns for the taxable year ending on the last day of the calendar
year in which the Certificates are issued.
(b) The REMIC I Regular Interests and the Regular Certificates
are hereby designated as "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I and REMIC II, respectively. The Class R-I
Certificates and the Class R-II Certificates are hereby designated as the single
class of "residual interests" (within the meaning of Section 860G(a)(2) of the
Code) in REMIC I and REMIC II, respectively. None of the Master Servicer, the
Special Servicer, the Trustee shall (to the extent within its control) permit
the creation of any other "interests" in REMIC I and REMIC II (within the
meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day"
of REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date" of (i) the REMIC I Regular Interests and the
Regular Certificates (other than the Class XP Certificates) shall be the
Distribution Date in July 2034, the Distribution Date following the latest
maturity of any Mortgage Loan and (ii) the Class XP Certificates is the
Distribution Date in July 2009.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I and REMIC II, and shall act on behalf of the related REMIC in
relation to any tax matter or controversy and
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shall represent the related REMIC in any administrative or judicial proceeding
relating to an examination or audit by any governmental taxing authority;
provided that the REMIC Administrator is hereby irrevocably appointed to act and
shall act as agent and attorney-in-fact for the Tax Matters Person for each of
REMIC I and REMIC II in the performance of its duties as such.
(e) Except as otherwise provided in Section 3.17(a) and
subsections (i) and (j) below, the REMIC Administrator shall pay out of its own
funds any and all routine tax administration expenses of the Trust Fund incurred
with respect to each of REMIC I and REMIC II (but not including any professional
fees or expenses related to audits or any administrative or judicial proceedings
with respect to the Trust Fund that involve the Internal Revenue Service or
state tax authorities, which extraordinary expenses shall be payable or
reimbursable to the Trustee from the Trust Fund unless otherwise provided in
Section 10.01(h) or 10.01(i)).
(f) Within 30 days after the Closing Date, the REMIC
Administrator shall obtain taxpayer identification numbers for each of REMIC I
and REMIC II by preparing and filing Internal Revenue Service Forms SS-4 and
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, cause the Trustee to sign and file all of the other
Tax Returns in respect of REMIC I and REMIC II. The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor. The other parties hereto shall provide on a timely
basis to the REMIC Administrator or its designee such information with respect
to each of REMIC I and REMIC II as is in its possession and reasonably requested
by the REMIC Administrator to enable it to perform its obligations under this
Article. Without limiting the generality of the foregoing, the Depositor, within
ten days following the REMIC Administrator's request therefor, shall provide in
writing to the REMIC Administrator such information as is reasonably requested
by the REMIC Administrator for tax purposes, as to the valuations and issue
prices of the Certificates, and the REMIC Administrator's duty to perform its
reporting and other tax compliance obligations under this Article X shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the REMIC Administrator
to perform such obligations.
(g) The REMIC Administrator shall perform on behalf of each of
REMIC I and REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included among such
duties, the REMIC Administrator shall provide to: (i) any Transferor of a
Residual Certificate or agent of a Non-Permitted Transferee, such information as
is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required hereunder); and (iii) the Internal Revenue
Service, the name, title, address and telephone number of the Person who will
serve as the representative of each of REMIC I and REMIC II.
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(h) The REMIC Administrator shall perform its duties hereunder
so as to maintain the status of each of REMIC I and REMIC II and as a REMIC
under the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, or the Trustee shall knowingly take (or cause REMIC I or REMIC II to
take) any action or fail to take (or fail to cause to be taken) any action that,
under the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of REMIC I or REMIC II as a REMIC, or (ii) except as
provided in Section 3.17(a), result in the imposition of a tax upon either REMIC
I or REMIC II (including, but not limited to, the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code or the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code (any such endangerment or
imposition or, except as provided in Section 3.17(a), imposition of a tax, an
"Adverse REMIC Event")), unless the REMIC Administrator has obtained or received
an Opinion of Counsel (at the expense of the party requesting such action or at
the expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from acting for the benefit of the Certificateholders) to
the effect that the contemplated action will not result in an Adverse REMIC
Event. The REMIC Administrator shall not take any action or fail to take any
action (whether or not authorized hereunder) as to which the Master Servicer or
the Special Servicer has advised it in writing that either the Master Servicer
or the Special Servicer has received or obtained an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I or REMIC II, or
causing either REMIC I or REMIC II to take any action, that is not expressly
permitted under the terms of this Agreement, the Master Servicer and the Special
Servicer shall consult with the REMIC Administrator or its designee, in writing,
with respect to whether such action could cause an Adverse REMIC Event to occur.
Neither the Master Servicer nor the Special Servicer shall take any such action
or cause either REMIC I or REMIC II to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur, and neither the Master Servicer nor the Special Servicer shall have any
liability hereunder for any action taken by it in accordance with the written
instructions of the REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee or the
REMIC Administrator. At all times as may be required by the Code, the REMIC
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of each of REMIC I and REMIC II will consist of "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.
(i) If any tax is imposed on any of REMIC I or REMIC II,
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 REMIC I or REMIC II 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 3.17(a)), 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 REMIC
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Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this Article X provided that no
liability shall be imposed upon the REMIC Administrator under this Clause if
another party has responsibility for payment of such tax under Clauses (iii) or
(v) of this Section; (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
Article III or this Article X; (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 Article III or this Article X; (iv) the Trustee, if such tax arises out of
or results from a breach by the Trustee, of any of its respective obligations
under Article IV, Article VIII or this Article X; (v) the applicable Mortgage
Loan Seller, if such tax was imposed due to the fact that any of the Mortgage
Loans did not, at the time of their transfer to REMIC I, constitute a "qualified
mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the Trust Fund,
excluding the portion thereof constituting the Grantor Trust, in all other
instances. Any tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a) shall be charged to and paid by the Trust Fund. Any such amounts
payable by the Trust Fund shall be paid by the Trustee upon the written
direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account in reduction of the Available Distribution Amount pursuant
to Section 3.05(b).
(j) The REMIC Administrator shall, for federal income tax
purposes, maintain books and records with respect to each of REMIC I and REMIC
II on a calendar year and on an accrual basis.
(k) Following the Startup Day, none of the Trustee, the Master
Servicer, or the Special Servicer shall accept any contributions of assets to
REMIC I or REMIC II unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund, the Trustee) to the effect that the inclusion of such
assets in such REMIC will not cause: (i) such REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding; or (ii) the imposition
of any tax on such REMIC under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(l) None of the Trustee, the Master Servicer, the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or foreclosure of a Mortgage Loan, including,
but not limited to, the sale or other disposition of a Mortgaged Property
acquired by deed in lieu of foreclosure, (B) the bankruptcy of REMIC I or REMIC
II, (C) the termination of REMIC I and REMIC II pursuant to Article IX of this
Agreement, or (D) a purchase of Mortgage Loans pursuant to or as contemplated by
Article II or III of this Agreement); (ii) the sale or disposition of any
investments in the Certificate Account, the Distribution Account or the REO
Account for gain; or (iii) the acquisition of any assets on behalf of REMIC I or
REMIC II (other than (1) a Mortgaged Property acquired through foreclosure, deed
in lieu of foreclosure or otherwise in respect of a Defaulted Mortgage Loan, (2)
a Qualified Substitute Mortgage Loan pursuant to Article II hereof and (3)
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account, the Distribution Account or the REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund, the Trustee) to the effect that such sale,
disposition, or acquisition
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will not cause: (x) REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding; or (y) the imposition of any tax on
REMIC I or REMIC II under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(m) Except as permitted by Section 3.17(a), none of the
Trustee, the Master Servicer and the Special Servicer shall enter into any
arrangement by which REMIC I or REMIC II will receive a fee or other
compensation for services nor permit REMIC I or REMIC II to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
SECTION 10.02 Grantor Trust Administration.
(a) The REMIC Administrator shall treat the Grantor Trust, for
tax return preparation purposes, as a grantor trust under the Code and shall
treat the Additional Interest, the Additional Interest Account and amounts held
from time to time in the Additional Interest Account that represent Additional
Interest as separate assets of the Grantor Trust, and not of REMIC I or REMIC
II, as permitted by Treasury Regulations Section 1.860G-2(i)(1). The Class Z-I
Certificates are hereby designated as representing an undivided beneficial
interest in Additional Interest payable on Xxxxxxx Mortgage Loans and proceeds
thereof. The Class Z-II Certificates are hereby designated as representing an
undivided beneficial interest in Additional Interest payable on Wachovia
Mortgage Loans and proceeds thereof.
(b) The REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to the Grantor Trust (but not including any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, cause the Trustee
to sign and file when due all of the Tax Returns in respect of the Grantor
Trust. The expenses of preparing and filing such returns shall be borne by the
REMIC Administrator without any right of reimbursement therefor. The other
parties hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to the Grantor Trust as is in its
possession and reasonably requested by the REMIC Administrator to enable it to
perform its obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the REMIC
Administrator's request therefor, shall provide in writing to the REMIC
Administrator such information as is reasonably requested by the REMIC
Administrator for tax purposes, and the REMIC Administrator's duty to perform
its reporting and other tax compliance obligations under this Section 10.02
shall be subject to the condition that it receives from the Depositor such
information possessed by the Depositor that is necessary to permit the REMIC
Administrator to perform such obligations.
(d) The REMIC Administrator shall furnish or cause to be
furnished to the Class Z-I and Class Z-II Certificateholders on the cash or
accrual method of accounting, as
210
applicable, such information as to their respective portions of the income and
expenses of the Grantor Trust as may be required under the Code, and shall
perform on behalf of the Grantor Trust all reporting and other tax compliance
duties that are required in respect thereof under the Code, the Grantor Trust
Provisions or other compliance guidance issued by the Internal Revenue Service
or any state or local taxing authority.
(e) The REMIC Administrator shall perform its duties hereunder
so as to maintain the status of the Grantor Trust as a grantor trust under the
Grantor Trust Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special Servicer
or the Trustee shall knowingly take (or cause the Grantor Trust to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
endanger the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (any such endangerment of grantor trust status, an "Adverse
Grantor Trust Event"), unless the REMIC Administrator has obtained or received
an Opinion of Counsel (at the expense of the party requesting such action or at
the expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto shall take
any action or fail to take any action (whether or not authorized hereunder) as
to which the REMIC Administrator has advised it in writing that the REMIC
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to the Grantor Trust, or
causing the Trust Fund to take any action, that is not expressly permitted under
the terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the REMIC Administrator or its designee, in writing, with respect
to whether such action could cause an Adverse Grantor Trust Event to occur.
Neither the Master Servicer nor the Special Servicer shall have any liability
hereunder for any action taken by it in accordance with the written instructions
of the REMIC Administrator. The REMIC Administrator may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not expressly permitted by this Agreement, but in no
event at the cost or expense of the Trust Fund, the REMIC Administrator or the
Trustee. Under no circumstances may the REMIC Administrator 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 Z-I and Class Z-II
Certificates.
(f) If any tax is imposed on the Grantor Trust, 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 REMIC Administrator, if such tax arises out of or results from a breach by
the REMIC Administrator of any of its obligations under this Section 10.02; (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 Article III or this Section
10.02; (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 Article III or
this Section 10.02; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee, of any of its obligations under Article IV, Article
VIII or this Section 10.02; or (v) the portion of the Trust Fund constituting
the Grantor Trust in all other instances.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01 Amendment.
(a) This Agreement may be amended from time to time by the
mutual agreement of the Depositor, the Master Servicer, the Special Servicer,
the Trustee and the Fiscal Agent, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct, modify or
supplement any provision herein which may be inconsistent with any other
provision herein, (iii) to add any other provisions with respect to matters or
questions arising hereunder which shall not be inconsistent with the provisions
hereof, (iv) to relax or eliminate any requirement hereunder imposed by the
REMIC Provisions if the REMIC Provisions are amended or clarified such that any
such requirement may be relaxed or eliminated, or (v) if such amendment, as
evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) delivered to the
Master Servicer, the Special Servicer and the Trustee, is advisable or
reasonably necessary to comply with any requirements imposed by the Code or any
successor or amendatory statute or any temporary or final regulation, revenue
ruling, revenue procedure or other written official announcement or
interpretation relating to federal income tax laws or any such proposed action
which, if made effective, would apply retroactively to REMIC I or REMIC II
created hereunder at least from the effective date of such amendment, or would
be necessary to avoid the occurrence of a prohibited transaction or to reduce
the incidence of any tax that would arise from any actions taken with respect to
the operation of any such REMIC; provided that such action (except any amendment
described in clause (v) above) shall not, as evidenced by an Opinion of Counsel
(at the expense of the Trust Fund, in the case of any amendment requested by the
Master Servicer or Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and otherwise at the expense of the party
seeking such amendment) obtained by or delivered to the Master Servicer, the
Special Servicer and the Trustee, adversely affect in any material respect the
interests of any Certificateholder; and provided further that the Master
Servicer, the Special Servicer and the Trustee shall have first obtained from
each Rating Agency written confirmation that such amendment will not result in
the qualification, downgrade or withdrawal of the rating on any Class of
Certificates.
(b) This Agreement may also be amended from time to time by
the agreement of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans that are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) as evidenced by an Opinion of Counsel obtained by or delivered
to the Master Servicer, the Special Servicer and the Trustee, adversely affect
in any material respect the interests of the Holders of any Class of
Certificates in a manner other than as described in (i) without the consent of
the Holders of all Certificates of such Class, (iii) modify the provisions of
212
this Section 11.01 without the consent of the Holders of all Certificates then
outstanding, (iv) modify the provisions of Section 3.20 without the consent of
the Holders of Certificates entitled to all of the Voting Rights or (v) modify
the definition of Servicing Standard or the specified percentage of Voting
Rights which are required to be held by Certificateholders to consent or not to
object to any particular action pursuant to any provision of this Agreement
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to matters described above as
they would if any other Person held such Certificates, so long as neither the
Depositor nor any of its Affiliates is performing servicing duties with respect
to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement,
the Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
REMIC I or REMIC II pursuant to the REMIC Provisions or on the Grantor Trust or
cause REMIC I or REMIC II to fail to qualify as a REMIC or the Grantor Trust to
fail to qualify as a grantor trust at any time that any Certificates are
outstanding and (ii) such amendment complies with the provisions of this Section
11.01.
(d) Promptly after the execution of any such amendment, the
Trustee shall send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of
Certificateholders under this Section 11.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered
pursuant to Section 11.01(a), (b) or (c) shall be borne by the Person seeking
the related amendment, except that if the Master Servicer, the Special Servicer
or the Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Section 3.05.
SECTION 11.02 Recordation of Agreement; Counterparts.
213
(a) To the extent permitted by applicable law, this Agreement
is subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except
as expressly provided for herein) or in any manner otherwise control the
operation and management of the Trust Fund, or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association; nor shall any
Certificateholder be under any liability to any third party by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights
214
of the Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04 Governing Law.
This Agreement and the Certificates shall be construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.05 Notices.
Any communications provided for or permitted hereunder shall
be in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (i) in the case of the Depositor,
Xxxxxxx Xxxxx Mortgage Investors, Inc., 4 World Financial Center, 10th Floor,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. XxXxxxxx,
Director, facsimile number: 000 000-0000; (ii) in the case of the Master
Servicer, Wachovia Bank, National Association, NC 1075, 0000 Xxxxxxxx Xxxxx -
XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 (for overnight mail only), 28288-1975
(for regular mail), Attention: Portfolio Manager, Re: Xxxxxxx Xxxxx Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-MW1, facsimile
number: (000) 000-0000, with a copy to Wachovia Corporation, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxx Xxxxxxxx, Esq.;
(iii) in the case of the Special Servicer, Lend Lease Asset Management, L.P.,
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xxxxxxx X'Xxxxxx
and Legal Counsel, Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1, facsimile number: 000 000-0000; (iv)
in the case of the Trustee, LaSalle Bank National Association, 000 X. XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Asset Backed Securities Trust
Services Group, Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1, facsimile number: (000) 000-0000, (v) in the case
of the Fiscal Agent, ABN AMRO Bank N.V. c/o LaSalle Bank National Association,
000 X. XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset
Backed Securities Trust Services Group, Xxxxxxx Xxxxx Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2002-MW1, facsimile number: (312)
904-2084, (vi) in the case of the Underwriters, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, 4 World Financial Center, 000 Xxxxx Xxxxxx - 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx, Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1, facsimile
number: (000) 000-0000 and Wachovia Securities, Inc., One Wachovia Center, 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, Attention: Xx. Xxxxxxx X.
Xxxxxx, Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1, facsimile number: 000-000-0000, (vii) in the case
of any Companion Holder, the address(es) for notice to such Companion Holder as
set forth in the related Intercreditor Agreement, (viii) in the case of the
Rating Agencies, (A) Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, facsimile number: (000) 000-0000; and (B) S&P
215
Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 Attention: CMBS
Surveillance Group, facsimile number (000) 000-0000, or as to each such Person
such other address as may hereafter be furnished by such Person to the parties
hereto in writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's
right, title and interest in and to the Mortgage Loans pursuant to this
Agreement shall constitute a sale and not a pledge of security for a loan. If
such conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
the Depositor's entire right, title and interest in and to the assets
constituting the Trust Fund.
SECTION 11.08 Xxxxxx Act.
Any provisions required to be contained in this Agreement by
Section 126 of Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 shall not have any effect, and if said Section 126 should at any
time be repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto, and all such provisions shall inure to the benefit of the
Certificateholders. This Agreement may not be amended in any manner that would
adversely affect the rights of any third party beneficiary hereof without its
consent. No
216
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.11 Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating
Agency and the Controlling Class Representative with respect to each of the
following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not
been cured;
(iii) the resignation or termination of the Trustee, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by any of the
Mortgage Loan Sellers pursuant to the Merrill Mortgage Loan Purchase
Agreement or the Wachovia Mortgage Loan Purchase Agreement;
(v) any change in the location of the Distribution
Account;
(vi) the final payment to any Class of
Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or
REO Property.
(b) The Master Servicer shall promptly provide notice to each
Rating Agency with respect to each of the following of which it has actual
knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate
Account.
(c) The Special Servicer shall furnish each Rating Agency and
the Controlling Class Representative with respect to a non-performing or
Defaulted Mortgage Loan such information as the Rating Agency or Controlling
Class Representative shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and
the Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance
described in Section 3.13;
217
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
(iii) any Officers' Certificate delivered to the Trustee
pursuant to Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a)
and the statements and reports described in Sections 3.12(b),
3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency
and the Controlling Class Representative, upon reasonable notice, the items
described in Section 3.15(a) and (ii) promptly deliver to each Rating Agency and
the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
(g) Notwithstanding any provision herein to the contrary each
of the Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.12 Complete Agreement.
This Agreement embodies the complete agreement among the
parties and may not be varied or terminated except by a written agreement
conforming to the provisions of Section 11.01. All prior negotiations or
representations of the parties are merged into this Agreement and shall have no
force or effect unless expressly stated herein.
218
IN WITNESS WHEREOF, the parties hereto have caused their names
to be signed hereto by their respective officers thereunto duly authorized, in
each case as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Associate
LEND LEASE ASSET MANAGEMENT, L.P.
Special Servicer
by Pearl Mortgage, Inc., its general partner
By: /s/ Xxxxxxx X'Xxxxxx
---------------------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxx
---------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATE
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: ______% per annum Class Principal Balance of the Class A-1 Certificates
as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class A-1
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
A-1-1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF 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 THE CLASS O
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-2, THE CLASS A-3 AND THE CLASS A-4
CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-1 Certificate (obtained by
dividing the principal amount of this Class A-1 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-1 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lend Lease Asset Management, L.P. (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-1-2
Pursuant to the terms of the Agreement, distributions will be made on
the 4th business day after the related Determination Date (each, a "Distribution
Date"). With respect to each Distribution Date, the Determination Date is the
8th day of each month, or if such 8th day is not a business day, the next
succeeding Business Day (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-1 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-1 Certificates will be made by the Trustee, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-1 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and
A-1-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-1
Certificates are exchangeable for new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-1
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool
A-1-4
at the time of purchase being less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Closing Date specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-1-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------------
Authorized Representative
A-1-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------------
Authorized Representative
A-1-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
A-1-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class A-2 Certificates
as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class A-2
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-2-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF 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 THE CLASS O
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-1, CLASS A-3 AND CLASS A-4 CERTIFICATES
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-2 Certificate (obtained by
dividing the principal amount of this Class A-2 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-2 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lend Lease Asset Management, L.P. (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-2-2
Pursuant to the terms of the Agreement, distributions will be made on
the 4th business day after the related Determination Date (each, a "Distribution
Date"). With respect to each Distribution Date, the Determination Date is the
8th day of each month, or if such 8th day is not a business day, the next
succeeding Business Day (each, a "Determination Date"). Distributions will be
made commencing on the first Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day of the month immediately preceding the month of such distribution
(the "Record Date"), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of the Class A-2 Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on the
Class A-2 Certificates will be made by the Trustee, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest Accrual Period,
plus any unpaid interest shortfall with respect to this Certificate for any
prior Distribution Date, if any, will be payable on the related Distribution
Date to the extent provided in the Agreement. The "Interest Accrual Period" with
respect to any Distribution Date and with respect to the Class A-2 Certificates
is the calendar month preceding the month in which such Distribution Date occurs
and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and
A-2-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-2
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee,
and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-2
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool
A-2-4
at the time of purchase being less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Closing Date specified on the face
hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer, and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as
consisting of two separate REMICs and a grantor trust, without the consent of
the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-2-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------------
Authorized Representative
A-2-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-----------------------------------
Authorized Representative
A-2-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-2-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class A-3 Certificates
as of the Closing Date:
$____________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class A-3
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-3-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF 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 OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1, THE CLASS A-2 AND CLASS A-4 CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-3 Certificate (obtained by
dividing the principal amount of this Class A-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lend Lease Asset Management, L.P. (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-3-2
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class A-3 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class A-3 Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class A-3 Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and
A-3-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Class A-3 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-3 Certificates are exchangeable for new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class A-3 Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-3 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-3
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool
A-3-4
at the time of purchase being less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Closing Date specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-3-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-3-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-3-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
___________________________________________
Signature by or on behalf of Assignor
___________________________________________
Signature Guaranteed
A-3-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS A-4 CERTIFICATE
CLASS A-4 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class A-4 Certificates
as of the Closing Date:
$_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class A-4
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-4-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF 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 OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE, THE CLASS A-1, CLASS A-2 AND CLASS A-4 CERTIFICATES MAY BE REDUCED
BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class A-4 Certificate (obtained by
dividing the principal amount of this Class A-4 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class A-4 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class A-4 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Xxxxxxx
Xxxxx Mortgage Investors, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association (herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lend Lease Asset Management, L.P. (herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
A-4-2
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class A-4 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class A-4 Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class A-4 Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and
A-4-3
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such distribution is made upon this
Certificate.
The Class A-4 Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A-4 Certificates are exchangeable for new Class A-4 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-4 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class A-4 Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-4 Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class A-4
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool
A-4-4
at the time of purchase being less than 1% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Closing Date specified on the face
hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-4-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-4-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-4 Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-4-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
A-4-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS XC CERTIFICATE
CLASS XC COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% Aggregate Certificate Notional Amount of all Class XC
Certificates as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Certificate Notional Amount of this Class XC
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
A-5-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS XC
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES AS SET FORTH IN THE AGREEMENT, THE OUTSTANDING
NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class XC Certificate in that certain
beneficial ownership interest evidenced by all the Class XC Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), Wachovia Bank, National Association (herein called the "Master
Servicer", which term includes any successor entity under the Agreement), Lend
Lease Asset Management, L.P. (herein called the "Special Servicer", which term
includes any successor entity under the Agreement), and LaSalle Bank National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal
Agent", which term includes any successor entity under the Agreement), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined
A-5-2
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class XC Certificates on the applicable
Distribution Date pursuant to the Agreement. The Pass-Through Rate applicable to
each Component of the Class XC Certificates for each Distribution Date is as
provided in the Agreement. All distributions made under the Agreement on the
Class XC Certificates will be made by the Trustee, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class XC Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class XC Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class XC Certificates are exchangeable for new Class XC Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-5-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class XC Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class XC Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class XC Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class XC Certificate without
registration or qualification. Any Class XC Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class XC Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class XC Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
XC Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-5-4
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class XC
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-5-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-5-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class XC Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-5-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-5-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS XP CERTIFICATE
CLASS XP COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% Aggregate Certificate Notional Amount of all Class XP
Certificates as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Certificate Notional Amount of this Class XP
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: _________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF INTEREST ONLY ON A NOTIONAL AMOUNT AS SET FORTH IN THE
AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
A-6-1
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
BECAUSE THE COMPONENTS COMPRISING THE NOTIONAL AMOUNT OF THE CLASS XP
CERTIFICATES WILL BE REDUCED BY ANY DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THE CERTIFICATES RELATING TO SUCH COMPONENTS
AND BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND WHICH ARE
ALLOCATED TO SUCH CERTIFICATES RELATING TO SUCH COMPONENTS AS SET FORTH IN THE
AGREEMENT, THE OUTSTANDING NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class XP Certificate in that certain
beneficial ownership interest evidenced by all the Class XP Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), Wachovia Bank, National Association (herein called the "Master
Servicer", which term includes any successor entity under the Agreement), Lend
Lease Asset Management, L.P. (herein called the "Special Servicer", which term
includes any successor entity under the Agreement), LaSalle Bank National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal
Agent", which term includes any successor entity under the Agreement), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined
A-6-2
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class XP Certificates on the applicable
Distribution Date pursuant to the Agreement. The Pass-Through Rate applicable to
each Component of the Class XP Certificates for each Distribution Date will be
as provided in the Agreement. All distributions made under the Agreement on the
Class XP Certificates will be made by the Trustee, by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class XP Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
The Class XP Certificates are issuable in fully registered
form only without coupons in minimum denominations specified in the Agreement.
As provided in the Agreement and subject to certain limitations therein set
forth, Class XP Certificates are exchangeable for new Class XP Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
A-6-3
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class XP Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class XP Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class XP Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class XP Certificate without
registration or qualification. Any Class XP Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class XP Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class XP Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
XP Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-6-4
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class XP
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-6-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-6-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class XP Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-6-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-6-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS B CERTIFICATE
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class B Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class B
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-7-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES AND THE CLASS XP CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS A-4
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C, CLASS
D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS
N AND THE CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class B Certificate (obtained by dividing
the principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes
A-7-2
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class B Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class B Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class B
A-7-3
Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class B Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class B Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require,
A-7-4
the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder to purchase from the Trust Fund all Mortgage Loans and each
REO Property remaining therein. The exercise of such right will effect early
retirement of the Class B Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-7-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-7-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-7-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-7-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by ____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class C Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class C
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-8-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M, CLASS N AND THE CLASS O CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National
A-8-2
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal
Agent", which term includes any successor entity under the Agreement), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class C Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class C Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any,
A-8-3
will be payable on the related Distribution Date to the extent provided in the
Agreement. The "Interest Accrual Period" with respect to any Distribution Date
and with respect to the Class C Certificates is the calendar month preceding the
month in which such Distribution Date occurs and is assumed to consist of 30
days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class C Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class C Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class C Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate
A-8-4
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder to purchase from the Trust Fund all
Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class C Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-8-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-8-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-8-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
__________________________________________
Signature by or on behalf of Assignor
__________________________________________
Signature Guaranteed
A-8-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
X-0-0
XXXXXXX X-0
FORM OF CLASS D CERTIFICATE
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class D Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class D
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-9-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES AND THE
CLASS C CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS C CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND THE CLASS O CERTIFICATES OF
THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class D Certificate (obtained by dividing
the principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National
A-9-2
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal
Agent", which term includes any successor entity under the Agreement), a summary
of certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class D Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class D Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any,
A-9-3
will be payable on the related Distribution Date to the extent provided in the
Agreement. The "Interest Accrual Period" with respect to any Distribution Date
and with respect to the Class D Certificates is the calendar month preceding the
month in which such Distribution Date occurs and is assumed to consist of 30
days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class D Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class D Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class D Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of
transfer or exchange of Class D Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
D Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Special Servicer or the Majority
Subordinate Certificateholder at a price
A-9-4
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder to purchase from the Trust Fund all Mortgage Loans and each
REO Property remaining therein. The exercise of such right will effect early
retirement of the Class D Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer, and the Trustee
with the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-9-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-9-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-9-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-9-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-9-9
EXHIBIT A-10
FORM OF CLASS E CERTIFICATE
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class E Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class E
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-10-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES AND THE CLASS D
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F, CLASS
G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS N AND THE CLASS O
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by dividing
the principal amount of this Class E
A-10-2
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class E Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class E Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Lend Lease Asset
Management, L.P. (herein called the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal Agent", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class E Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class E Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
A-10-3
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class E Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class E Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class E Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master
A-10-4
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class E Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
E Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class E
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the
A-10-5
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, and the Trustee with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of the Trust Fund (or designated portions thereof) as consisting of two separate
REMICs and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-10-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-10-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-10-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-10-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-10-10
EXHIBIT A-11
FORM OF CLASS F CERTIFICATE
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class F Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class F
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-11-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES AND CLASS E CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES AND THE CLASS E CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M,
CLASS N AND THE CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
A-11-2
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by dividing
the principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class F Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class F Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
A-11-3
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class F Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class F Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master
A-11-4
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class F
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class F Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
F Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class F
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the
A-11-5
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer, and the Trustee with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of the Trust Fund (or designated portions thereof) as consisting of two separate
REMICs and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-11-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-11-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-11-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-11-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-11-10
EXHIBIT A-12
FORM OF CLASS G CERTIFICATE
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class G Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class G
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-12-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS
F CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M, CLASS N AND THE CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED
TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
A-12-2
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class G Certificate (obtained by dividing
the principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class G Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class G Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
A-12-3
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class G Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class G Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master
A-12-4
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class G
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class G Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
G Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class G
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer, and the
Trustee and the rights of the Certificateholders under the
A-12-5
Agreement at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee with the consent of the Holders of Certificates
entitled to at least 51% of the Voting Rights allocated to the affected Classes.
Any such consent by the Holder of this Certificate shall be conclusive and
binding on such Holder and upon all future Holders of this Certificate and of
any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of the Trust Fund (or designated portions thereof) as consisting of two separate
REMICs and a grantor trust, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-12-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-12-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-12-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
________________________________________________
Signature by or on behalf of Assignor
________________________________________________
Signature Guaranteed
A-12-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-12-10
EXHIBIT A-13
FORM OF CLASS H CERTIFICATE
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class H Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class H
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-13-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS J, CLASS
K, CLASS L, CLASS M, CLASS N AND THE CLASS O CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
A-13-2
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by dividing
the principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class H
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class H Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class H Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
A-13-3
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class H Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class H Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master
A-13-4
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class H
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class H Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class H Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
H Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class H
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement
A-13-5
at any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as consisting of two separate REMICs and a grantor trust,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-13-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-13-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-13-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-13-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-13-10
EXHIBIT A-14
FORM OF CLASS J CERTIFICATE
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class J Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class J
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-14-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES AND THE CLASS H CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS K, CLASS L, CLASS M, CLASS N AND THE CLASS O
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
A-14-2
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class J
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class J Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class J Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
A-14-3
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class J Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class J Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master
A-14-4
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), 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. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class J
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class J Certificate without registration or qualification. Any Class J
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class J Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
J Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class J
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement
A-14-5
at any time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as consisting of two separate REMICs and a grantor trust,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-14-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-14-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
------------------------------
Authorized Representative
A-14-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-14-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-14-10
EXHIBIT A-15
FORM OF CLASS K CERTIFICATE
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class K Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class K
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-15-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
A-15-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS L, CLASS M, CLASS N AND THE
CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class K
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class K Certificates on the applicable
A-15-3
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class K Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class K Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class K Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-15-4
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class K Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class K Certificate without
registration or qualification. Any Class K Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class K Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class K Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
K Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-15-5
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class K
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-15-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-15-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-15-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
A-15-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-15-10
EXHIBIT A-16
FORM OF CLASS L CERTIFICATE
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class L Certificates as
of the Closing Date: $_________
-----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class L
Certificate as of the Closing Date: $_________
-----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
-----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
-----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
-----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
-----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
-----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-16-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES AND THE CLASS K CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
A-16-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES AND THE CLASS K
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS M, CLASS N
AND THE CLASS O CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class L
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class L Certificates on the applicable
A-16-3
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class L Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class L Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class L Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-16-4
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class L Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class L Certificate without
registration or qualification. Any Class L Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class L Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class L Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
L Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-16-5
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class L
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-16-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-16-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-16-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_______________________________________________
Signature by or on behalf of Assignor
_______________________________________________
Signature Guaranteed
A-16-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-16-10
EXHIBIT A-17
FORM OF CLASS M CERTIFICATE
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class M Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class M
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-17-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K AND THE CLASS L CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
A-17-2
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K
CERTIFICATES AND THE CLASS L CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS N AND THE CLASS O CERTIFICATES IS REDUCED TO
ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY
CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class M
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class M Certificates on the applicable
A-17-3
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class M Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class M Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class M Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-17-4
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class M Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class M Certificate without
registration or qualification. Any Class M Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class M Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class M Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
M Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-17-5
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class M
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-17-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-17-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-17-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
_____________________________________________
Signature by or on behalf of Assignor
_____________________________________________
Signature Guaranteed
A-17-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-17-10
EXHIBIT A-18
FORM OF CLASS N CERTIFICATE
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class N Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class N
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-18-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING
A-18-2
CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K
CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES OF THE SAME
SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS O CERTIFICATES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business
A-18-3
Day of the month immediately preceding the month of such distribution (the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class N Certificates on the applicable Distribution Date pursuant
to the Agreement. All distributions made under the Agreement on the Class N
Certificates will be made by the Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class N Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class N Certificates are exchangeable for new
A-18-4
Class N Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class N Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class N Certificate without
registration or qualification. Any Class N Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class N Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class N Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
N Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
A-18-5
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class N
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-18-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
---------------------------------
Authorized Representative
A-18-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Authorized Representative
A-18-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
__________________________________________
Signature by or on behalf of Assignor
__________________________________________
Signature Guaranteed
A-18-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-18-10
EXHIBIT A-19
FORM OF CLASS O CERTIFICATE
CLASS O COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Pass-Through Rate: _________% per annum Class Principal Balance of the Class O Certificates as
of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Initial Certificate Principal Balance of this Class O
Certificate as of the Closing Date: $_________
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1 CUSIP No. _________
----------------------------------------------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL
A-19-1
ASSOCIATION, ABN AMRO BANK N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4 CERTIFICATES, THE CLASS
XC CERTIFICATES, THE CLASS XP CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS
C CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES, THE CLASS M
CERTIFICATES AND THE CLASS N CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE, DEEMED) TO HAVE
CERTIFIED THAT THE FOREGOING
A-19-2
CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS A-3 CERTIFICATES, THE CLASS A-4
CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES, THE CLASS D
CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES, THE CLASS G
CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES, THE CLASS K
CERTIFICATES, THE CLASS L CERTIFICATES, THE CLASS M CERTIFICATES AND THE CLASS N
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED
BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class O Certificate (obtained by dividing
the principal amount of this Class O Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class O Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class O
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), Wachovia Bank, National Association
(herein called the "Master Servicer", which term includes any successor entity
under the Agreement), Lend Lease Asset Management, L.P. (herein called the
"Special Servicer", which term includes any successor entity under the
Agreement), LaSalle Bank National Association (herein called the "Trustee",
which term includes any successor entity under the Agreement), and ABN AMRO Bank
N.V. (herein called the "Fiscal Agent", which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in
A-19-3
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of the
Class O Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class O
Certificates will be made by the Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Interest accrued on this Certificate during an Interest
Accrual Period, plus any unpaid interest shortfall with respect to this
Certificate for any prior Distribution Date, if any, will be payable on the
related Distribution Date to the extent provided in the Agreement. The "Interest
Accrual Period" with respect to any Distribution Date and with respect to the
Class O Certificates is the calendar month preceding the month in which such
Distribution Date occurs and is assumed to consist of 30 days.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
The Class O Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
Class O Certificates are exchangeable for new Class O Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
A-19-4
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class O Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class O Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class O Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class O Certificate without
registration or qualification. Any Class O Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class O Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class O Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
O Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
A-19-5
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class O
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-19-6
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-19-7
CERTIFICATE OF AUTHENTICATION
This is one of the Class O Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-19-8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
______________________________________________
Signature by or on behalf of Assignor
______________________________________________
Signature Guaranteed
A-19-9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-19-10
EXHIBIT A-20
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Percentage Interest evidenced by this Class R-I
Certificate: _________%
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-4, CLASS XC, CLASS XP, 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 THE CLASS O
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE
A-20-1
MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Wachovia Bank, National Association is the
registered owner of the Percentage Interest evidenced by this Class R-I
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-I Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Lend Lease Asset
Management, L.P. (herein called the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal Agent", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to
A-20-2
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to the Holders of the Class R-I Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on this Class R-I Certificate will be made by check mailed
to the address of the Person entitled thereto, as such name and address appear
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-I Certificate is to be
made
A-20-3
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their affiliates), then the Certificate Registrar shall refuse
to register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class R-I Certificate without
registration or qualification. Any Class R-I Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-I Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Class R-I Certificate or any interest
therein shall be made to (A) a Plan or (B) any Person who is directly or
indirectly purchasing the Class R-I Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-I Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
This Certificate represents an interest in the "residual
interest" in REMIC as defined in the Agreement. Each Person who has or who
acquires any Ownership Interest in this Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have agreed to be bound
by the provisions of Section 5.02(d) of the Agreement and, if any purported
Transferee shall become a Holder of this Certificate in violation of the
provisions of such Section 5.02(d), to have irrevocably authorized the Trustee,
under clause (ii)(A) of such Section 5.02(d) to deliver payments to a Person
other than such Person and to have irrevocably authorized the Certificate
Registrar under clause (ii)(B) of such Section 5.02(d) 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. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Master Servicer and the Certificate
Registrar of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit I-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed
A-20-4
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate 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
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected. The proposed Transferor must also state
in the Transfer Affidavit and Agreement that (A) it has historically paid its
debts as they have come due and intends to continue to pay its debts as they
come due in the future, (B) it understands that it may incur tax liabilities
with respect to this certificate in excess of cash flows generated thereby,
(C)it intends to pay any taxes associated with holding this certificate as they
become due, and (D) it will not transfer this certificate to any person or
entity that does not provide a similar affidavit. Any purported transfer to a
disqualified organization or other person that is not a permitted transferee or
otherwise in violation of these restrictions shall be absolutely null and void
and shall vest no rights in any purported transferee. If this certificate
represents a "non-economic residual interest", as defined in Treasury
Regulations Section 1.860E-1(c), transfers of this certificate may be
disregarded for federal income tax purposes. In order to satisfy a regulatory
safe harbor under which such transfers will not be disregarded, the transferor
may be required, among other things, to satisfy itself as to the financial
condition of the proposed transferee and either to transfer at a minimum price
or to an eligible transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit I-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Master Servicer
and the Trustee written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Certificate Registrar and the Master Servicer the following: (a) written
confirmation 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 ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused
A-20-5
by the transfer of this Class R-I Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the transfer of this Class R-I
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization", a "Plan" or a "Non-United States Person". A
"Disqualified Organization" is any of (i) the United States or a possession
thereof, 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 the
FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter I 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 Trustee or Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Class R-I Certificate by
such Person may cause the Trust Fund 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 Class R-I 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership, including any entity treated as a
corporation or a partnership for United States federal income tax purposes,
created or organized in, or under the laws of, the United States, any state or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are enacted that provide otherwise), an estate whose income is
includable in gross income for United States federal income tax purposes
regardless of its source, or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of
transfer or exchange of Class R-I Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-I Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar or any such agent shall
be affected by notice to the contrary.
A-20-6
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-20-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-20-8
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-20-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-20-10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-20-11
EXHIBIT A-21
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Percentage Interest evidenced by this Class R-II
Certificate: _________%
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-4, CLASS XC, CLASS XP, 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 THE CLASS O
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE
A-21-1
MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH
ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that Wachovia Bank, National Association is the
registered owner of the Percentage Interest evidenced by this Class R-II
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-II Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Lend Lease Asset
Management, L.P. (herein called the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal Agent", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is
A-21-2
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount, if any,
required to be distributed to the Holders of the Class R-II Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on this Class R-II Certificate will be made by check mailed
to the address of the Person entitled thereto, as such name and address appear
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class R-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class R-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made
A-21-3
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their affiliates), then the Certificate Registrar shall refuse
to register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), 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. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-II
Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Class R-II Certificate or any interest
therein shall be made to (A) a Plan or (B) any Person who is directly or
indirectly purchasing the Class R-II Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-II Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
This Certificate represents an interest in the "residual
interest" in REMIC II, as defined in the Agreement. Each Person who has or who
acquires any Ownership Interest in this Certificate shall be deemed by the
acceptance or acquisition of such Ownership Interest to have agreed to be bound
by the provisions of Section 5.02(d) of the Agreement and, if any purported
Transferee shall become a Holder of this Certificate in violation of the
provisions of such Section 5.02(d), to have irrevocably authorized the Trustee,
under clause (ii)(A) of such Section 5.02(d) to deliver payments to a Person
other than such Person and to have irrevocably authorized the Certificate
Registrar under clause (ii)(B) of such Section 5.02(d) 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. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Master Servicer and the Certificate
Registrar of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit I-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed
A-21-4
Transferee, in form and substance satisfactory to the Certificate Registrar,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in this
Certificate 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
this Certificate, it will endeavor to remain a Permitted Transferee, and that it
has reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected. The proposed Transferor must also state
in the Transfer Affidavit and Agreement that (A) it has historically paid its
debts as they have come due and intends to continue to pay its debts as they
come due in the future, (B) it understands that it may incur tax liabilities
with respect to this certificate in excess of cash flows generated thereby,
(C)it intends to pay any taxes associated with holding this certificate as they
become due, and (D) it will not transfer this certificate to any person or
entity that does not provide a similar affidavit. Any purported transfer to a
disqualified organization or other person that is not a permitted transferee or
otherwise in violation of these restrictions shall be absolutely null and void
and shall vest no rights in any purported transferee. If this certificate
represents a "non-economic residual interest", as defined in Treasury
Regulations Section 1.860E-1(c), transfers of this certificate may be
disregarded for federal income tax purposes. In order to satisfy a regulatory
safe harbor under which such transfers will not be disregarded, the transferor
may be required, among other things, to satisfy itself as to the financial
condition of the proposed transferee and either to transfer at a minimum price
or to an eligible transferee as specified in regulations.
Each Person holding or acquiring any Ownership Interest in
this Certificate shall agree (x) to require a Transfer Affidavit and Agreement
from any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit I-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Master Servicer
and the Trustee written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be
modified, added to or eliminated, provided that there shall have been delivered
to the Certificate Registrar and the Master Servicer the following: (a) written
confirmation 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 ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as two REMICs or (y) be subject
to an entity-level tax caused
A-21-5
by the Transfer of any Class R-II Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the transfer of this Class R-II
Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization", a "Plan" or a "Non-United States Person". A
"Disqualified Organization" is any of (i) the United States or a possession
thereof, 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 the
FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter I 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 Trustee or Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Class R-II Certificate by
such Person may cause the Trust Fund 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 Class R-II 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.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership, including any entity treated as a
corporation or a partnership for United States federal income tax purposes,
created or organized in, or under the laws of, the United States, any state or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are enacted that provide otherwise), an estate whose income from is
includable in gross income for United States federal income tax purposes
regardless of its source, or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of
transfer or exchange of Class R-II Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Certificate Registrar or any such agent shall
be affected by notice to the contrary.
A-21-6
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than 1% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of the Trust Fund (or designated portions
thereof) as consisting of two separate REMICs and a grantor trust, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-21-7
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-------------------------------
Authorized Representative
A-21-8
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-------------------------------
Authorized Representative
A-21-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-21-10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-21-11
EXHIBIT A-22
FORM OF CLASS Z-I CERTIFICATE
CLASS Z-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Percentage Interest evidenced by this Class Z-I
Certificate: _________%
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF ADDITIONAL INTEREST AS SET FORTH IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
A-22-1
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Xxxxxxx Xxxxx Mortgage Lending, Inc. is
the registered owner of the Percentage Interest evidenced by this Class Z-I
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class Z-I Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Lend Lease Asset
Management, L.P. (herein called the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal Agent", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class Z-I Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class Z-I Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring
A-22-2
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries of Additional Interest payable on Merrill
Mortgage Loans, all as more specifically set forth herein and in the Agreement.
The Class Z-I Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class Z-I Certificates are
exchangeable for new Class Z-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Any distribution to the Holder of this Certificate is binding
on such Holder and all future Holders of this Certificate and any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such distribution is made upon this Certificate.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Z-I Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Z-I Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such
A-22-3
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class Z-I Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class Z-I Certificate without
registration or qualification. Any Class Z-I Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class Z-I Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class Z-I Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
Z-I Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Xxxxxxx Xxxxx Mortgage Lending, Inc. or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Z-I
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to
A-22-4
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund (or designated portions thereof) as consisting of two
separate REMICs and a grantor trust, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-22-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-22-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z-I Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-22-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-22-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-22-9
EXHIBIT A-23
FORM OF CLASS Z-II CERTIFICATE
CLASS Z-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2002-MW1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE TRUST
----------------------------------------------------------------------------------------------------------------------
Date of Pooling and Servicing Agreement: _________ Percentage Interest evidenced by this Class Z-II
Certificate: _________%
----------------------------------------------------------------------------------------------------------------------
Closing Date: _________ Aggregate Stated Principal Balance of the Mortgage
Loans as of the Cut-Off Date: $_________
----------------------------------------------------------------------------------------------------------------------
First Distribution Date: _________
----------------------------------------------------------------------------------------------------------------------
Master Servicer: Wachovia Bank, National Association Trustee: LaSalle Bank National Association
----------------------------------------------------------------------------------------------------------------------
Special Servicer: Lend Lease Asset Management, L.P.
----------------------------------------------------------------------------------------------------------------------
Certificate No. 1
----------------------------------------------------------------------------------------------------------------------
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL, BUT IS ENTITLED TO
RECEIVE DISTRIBUTIONS OF ADDITIONAL INTEREST AS SET FORTH IN THE AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO BANK
N.V., WACHOVIA BANK, NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
A-23-1
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I ERISA OR A "PLAN" DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Wachovia Bank, National Association is the
registered owner of the Percentage Interest evidenced by this Class Z-II
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class Z-II Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (herein called the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association (herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Lend Lease Asset
Management, L.P. (herein called the "Special Servicer", which term includes any
successor entity under the Agreement), LaSalle Bank National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), and ABN AMRO Bank N.V. (herein called the "Fiscal Agent", which term
includes any successor entity under the Agreement), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the respective meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 4th business day after the related Determination Date (each, a
"Distribution Date"). With respect to each Distribution Date, the Determination
Date is the 8th day of each month, or if such 8th day is not a business day, the
next succeeding Business Day (each, a "Determination Date"). Distributions will
be made commencing on the first Distribution Date specified above, to the Person
in whose name this Certificate is registered at the close of business on the
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class Z-II Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class Z-II Certificates will be made by the Trustee, by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring
A-23-2
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to
certain collections and recoveries of Additional Interest payable on Wachovia
Mortgage Loans, all as more specifically set forth herein and in the Agreement.
The Class Z-II Certificates are issuable in fully registered
form only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class Z-II Certificates are
exchangeable for new Class Z-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
Any distribution to the Holder of this Certificate is binding
on such Holder and all future Holders of this Certificate and any Certificate
issued upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such distribution is made upon this Certificate.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
in the Certificate Register upon surrender of this Certificate for registration
of transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class Z-II Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No transfer of any Class Z-II Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such
A-23-3
transfer from the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class Z-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class Z-II
Certificate without registration or qualification. Any Class Z-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class Z-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of
transfer or exchange of Class Z-II Certificates, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
Z-II Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Wachovia Bank, National Association or in such
other name as is requested by an authorized representative of DTC, transfers of
interests in this Certificate shall be made through the book-entry facilities of
DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement
shall terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Master Servicer, the Special Servicer
or the Majority Subordinate Certificateholder at a price determined as provided
in the Agreement of all Mortgage Loans and each REO Property remaining in the
Trust Fund. The Agreement permits, but does not require, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder to purchase
from the Trust Fund all Mortgage Loans and each REO Property remaining therein.
The exercise of such right will effect early retirement of the Class Z-II
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
1% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor, the Master Servicer, the Special Servicer and the
Trustee and the rights of the Certificateholders under the Agreement at any time
by the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to
A-23-4
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund (or designated portions thereof) as consisting of two
separate REMICs and a grantor trust, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been
executed by the Certificate Registrar, by manual signature, this Certificate
shall not be entitled to any benefit under the Agreement or be valid for any
purpose.
The registered Holder hereof, by its acceptance hereof, agrees
that it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-23-5
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: _________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------
Authorized Representative
A-23-6
CERTIFICATE OF AUTHENTICATION
This is one of the Class Z-II Certificates referred to in the
within-mentioned Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
--------------------------------
Authorized Representative
A-23-7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee) the beneficial ownership interest in the Trust Fund evidenced by the
within Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
__________________________________________________.
Dated: _________________________
____________________________________________
Signature by or on behalf of Assignor
____________________________________________
Signature Guaranteed
A-23-8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _____________________________ for
the account of _______________.
Distributions made by check (such check to be made payable to
_____________________) and all applicable statements and notices should be
mailed to _________________________.
This information is provided by _____________________________,
the Assignee named above, or ____________________________________, as its agent.
A-23-9
EXHIBIT B
MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN CUT-OFF DATE
NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE COUNTY BALANCE
------------------------------------------------------------------------------------------------------------------------------------
1 Royal Ahold Portfolio Various Various Various Various Various $74,919,760.01
1.01 Stop & Shop-Malden 00 Xxxxxxx Xxxxxx Xxxxxx XX 0000 Middlesex $12,481,458.36
1.02 Stop & Shop-Southington 000 Xxxxx Xxxx Xx. Xxxxxxxxxxx XX 0000 Hartford $10,930,966.64
1.03 Stop & Shop-Swampscott 000 Xxxxxxxx Xxxx Xxxxxxxxxx XX 0000 Essex $10,853,442.05
1.04 Stop & Shop-Cumberland 00 Xxxxxx Xxxx Xxxxxxxxxx XX 0000 Providence $11,163,540.40
1.05 Stop & Shop-Bristol 000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Providence $ 8,140,081.54
Township
1.06 Stop & Shop-Framingham 00 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Middlesex $ 8,992,851.99
1.07 Giant-Sicklerville 000 Xxxxxx-Xxxxx Xxxx Xx. Xxxxxxxxxxxx XX 00000 Camden $ 8,295,130.71
1.08 Bi-Lo Plaza - Greenville 0000 Xxxxx Xxxxxxxxxxxx Xx. Xxxxxxxxxx XX 00000 Greenville $ 4,062,288.31
2 Burbank Empire Center 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 Los Angeles $64,951,470.09
3 U-Haul Portfolio Various Various Various Various Various $64,794,526.08
3.01 701065 U-Haul West Seattle 0000 00XX Xxx XX Xxxxxxx XX 00000 King $ 1,935,132.17
3.02 706081 U-Haul Xxxxxx City 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Xxxxxxx $ 732,778.03
3.03 715075 U-Haul Westminster 0000 Xxxxxx Xxxxx Xxxx. Xxxxxxxxxxx XX 00000 Orange $ 1,373,834.18
3.04 717081 U-Haul Poway 00000 Xxxxx Xxxx Xxxxx XX 00000 San Diego $ 1,330,964.17
3.05 720058 U-Haul Bountiful 0000 X. 000 Xxxx Xxxxxxxxx XX 00000 Xxxxx $ 513,443.11
3.06 730063 U-Haul Lincoln 000 X. 00xx Xxxxxx Xxxxxxx XX 00000 Lancaster $ 414,742.39
3.07 740068 U-Haul Wichita 0000 Xxxx Xxxx. Xxxxxxx Xxxxx XX 00000 Wichita $ 697,883.83
Falls
3.08 750083 U-Haul Milwaukee 000 Xxxx Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 Milwaukee $ 793,593.62
(Capital Dr.)
3.09 770082 U-Haul Cincinnati 0000 Xxxxxxxx Xxx. Xxxxxxxxxx XX 00000 Xxxxxxxx $ 553,322.18
3.10 774062 U-Haul Chattanooga 0000 Xxxxxx Xxxx Xxxxxxxxxxx XX 00000 Xxxxxxxx $ 355,920.76
3.11 778056 U-Haul Ft. Xxxxxx 000 X XXXX XXXXXXX Xxxx Xxxxxx Xxxxx XX 00000 Okaloosa $ 1,117,611.11
Beach
3.12 783058 U-Haul Charleston 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000 Charleston $ 677,944.30
3.13 790055 U-Haul Nashua 000 Xxxxxx Xxxxxxx Xxx. Xxxxxx XX 00000 Hillsborough $ 1,243,230.20
South
3.14 803064 U-Haul Yonkers 000 Xxx Xxxx Xxxxx Xxxx Xxxxxxx XX 00000 Westchester $ 3,698,784.32
3.15 818072 U-Haul-Rockville, 00000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 Xxxxxxxxxx $ 1,867,337.74
MD
3.16 824020 U-Haul Roanoke 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000 Roanoke $ 1,003,955.74
3.17 834024 U-Haul Denver South 0000 X. Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Denver $ 569,273.81
3.18 835046 U-Haul Mesquite 0000 Xxxx Xxx 00 Xxxxxxxx XX 00000 Dallas $ 927,188.52
3.19 883069 U-Haul Prince 0000 Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000 Prince $ 1,968,032.41
Xxxxxx (Oaklawn) Xxxxxx Xxxxxx
3.20 713021 U-Haul Whittier 00000 Xxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Los Angeles $ 1,730,751.91
3.21 714042 U-Haul Altadena 0000 Xxxxx Xxxxxxx Xxx Xxxxxxxx XX 00000 Los Angeles $ 1,305,042.77
3.22 714046 U-Haul Canyon 00000 Xxxxxx Xxx Xxxxxx XX 00000 Los Angeles $ 2,145,494.30
Country Country
3.23 723024 U-Haul Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000 Maricopa $ 1,528,365.60
3.24 737025 U-Haul Austin 00000 Xxxxx XX 00 Xxxxxx XX 00000 Xxxxxx $ 2,265,131.53
3.25 743056 U-Haul Shreveport 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 Caddo Parish $ 874,348.75
3.26 752026 U-Haul Xxx Arbor 0000 Xxxxx Xxxxx Xxx Xxxxx XX 00000 Washtenaw $ 603,171.03
3.27 761074 U-Haul Tulsa 0000 Xxxxx xxxxxx Xxxxx XX 00000 Tulsa $ 419,727.28
3.28 776054 U-Haul Forest Park 0000 Xxxxxxxx Xxxx Xxxxxx Xxxx XX 00000 Xxxxxxx $ 541,358.46
3.29 776069 U-Haul Decatur 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Dekalb $ 1,039,846.91
3.30 788080 U-Haul Fort 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000 Broward $ 903,261.08
Lauderdale Manors
3.31 793074 U-Haul Des Moines 0000 XX 00xx Xxxxxx Xxx Xxxxxx XX 00000 Polk $ 802,566.41
3.32 825051 U-Haul Virginia 0000 Xxxxxxxx Xxxxx Xxxx. Xxxxxxxxx XX 00000 Virginia $ 1,318,003.47
Xxxxx Xxxxx Xxxxx
0.00 000000 X-Xxxx Xxxxxxxxx 000 xxxx Xxx 000 Xxxxxxxxx XX 00000 Seminole $ 620,119.64
Springs Springs
3.34 834021 U-Haul Littleton 0000-0000 X Xxxxx Xx Xx Xxxxxxxxx XX 00000 Arapahoe $ 533,382.64
3.35 836031 U-Haul Xxxxxx City 0000 Xxxxxx Xxxxxxx Xxxxxx Xxxx XX 00000 Tarrant $ 2,063,742.19
3.36 836048 U-Haul Fort Worth 0000 Xxx 000 & 0-00 Xx. Xxxxx XX 00000 Tarrant $ 1,007,943.65
3.37 883070 U-Haul Prince 0000 Xxxxxxxxx Xxxx Xxxx Xxxxxx Xxxxxx XX 00000 Prince $ 815,527.11
Xxxxxx (Jefferson) Xxxxxx
3.38 706067 U-Haul Sacramento 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 Sacramento $ 891,297.35
East East
3.39 713044 U-Haul Covina 0000 X Xxxxxx Xxxx Xxxxxx XX 00000 Los Angeles $ 912,233.87
3.40 716058 U-Haul San 000 Xxxxx X Xxxxxx Xxx XX 00000 San Bernadino $ 927,188.52
Xxxxxxxxx Xxxxxxxxx
3.41 724085 U-Haul Albuquerque 0000 Xxx Xxxxx XX Xxxxxxxxxxx XX 00000 Bernalillo $ 402,778.67
3.42 744079 U-Haul San Antonio 0000 XX Xxxxxxxx Xx. Xxx Xxxxxxx XX 00000 Bexar $ 724,802.21
3.43 746086 U-Haul Houston 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxxxx $ 829,484.79
South
3.44 749072 U-Haul Madison 000 Xxxx Xxxxxx Xxxxx Xxxxxxx XX 00000 Dane $ 681,932.20
3.45 772021 U-Haul Old Hickory 00000 Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000 Xxxxxx $ 1,609,120.73
3.46 774056 U-Haul Asheville 000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000 Buncombe $ 514,440.08
3.47 776037 U-Haul Athens 0000 Xxxxxxx Xxxxxxx Xxxxxx XX 00000 Xxxxxx $ 760,693.38
3.48 784067 U-Haul Jacksonville 0000 Xxxxxxxx Xxx Xxxxxxxxxxxx XX 00000 Xxxxx $ 1,136,553.67
3.49 787071 U-Haul Hialeah 0000 X. 00xx Xxxxxx Xxxxxxx XX 00000 Dade $ 1,230,269.50
Gardens Gardens
3.50 790061 U-Haul Concord 00 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Merrimack $ 1,082,716.92
3.51 796063 U-Haul Center 000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 Newport $ 1,476,522.80
Newport
3.52 802073 U-Haul Bellerose 000-00 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Queens $ 3,140,477.25
3.53 808086 U-Haul Wilmington 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 New Castle $ 925,194.57
3.54 812021 U-Haul Philadelphia 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Philadelphia $ 1,325,979.28
North
3.55 820025 U-Haul Baltimore 0000 Xxxxxxxxxx Xxxx. Xxxxxxxxx XX 00000 Baltimore $ 1,605,132.82
City
3.56 825064 U-Haul Chesapeake 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Chesapeake $ 964,076.67
3.57 882064 U-Haul Phoenix West 000 Xxxxx 0xx Xxxxxx Xxxxxxx Xxxx XX 00000 Maricopa $ 1,360,873.48
0 Xxxxxx Xxxxx Xxxxx 0000 Xxxxx Xxxx Xx. Xxxxxxx XX 00000 Monterey $44,963,978.52
0 Xxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Norfolk $40,348,182.67
0 Xxxxx Xxxx Xxxxxxxx 00000, 36701, 38705 & Xxxxxxx XX 00000 Xxxxx $35,925,511.35
00000 Xxxxx Xxxx Xxxxxxxx
0 Xxxx Xxx Xxxxxxx 000 Xxxx Xxx Xxxxx Xxxxxxxxxx XX 00000 Allegheny $25,958,854.53
Apartments
8 Somerfield at Lakeside 0000 Xxxxxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000 Sacramento $23,400,000.00
9 Mayfair Shopping Center 00-000 Xxxx Xxxxxxx Xxxxxxx XX 00000 Suffolk $22,470,551.90
Turnpike
10 Keystone Technology VII, 627,629 and 633 Xxxxxx XX 00000 Durham $22,450,000.00
VIII & IX Xxxxx Drive County
00 Xxxxxxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Broward $22,199,619.71
00 Xxxxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx XX 00000 Xxxxxxx $21,343,137.41
13 The Glens at Mill 0000 Xxxx xx Xxxxxxx Xxxxxx XX 00000 Gwinnett $20,800,000.00
Creek Village Boulevard
14 Sycamore Farms Apartments 00000 Xxxxx Xxxxxxxxxxxx Xxxxxxxx XX 00000 Oklahoma $19,848,052.76
Xxxxxx Xxxx
00 Xxxx Xxxxxxxx Xxxxxxxxxxx 00000 XX Xxxx Xxxxxxx Xxxx Xxxx XX 00000 King $18,100,000.00
00 Xxxxx Xxxxxx Xxxxx I XXX xx Xxxxx & Xxxxxx Xxx Xxxxx XX 00000 Xxxxx $18,000,000.00
00 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxx Xxxxxxxx Xxxxx Xxxx XX 00000 Washoe $16,725,000.00
18 Westchester Residence Inn 0 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 Westchester $15,918,720.87
19 TRW - Redondo Beach, CA 0000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Los Angeles $15,122,173.12
20 Uptown Shopping Center Xxxx Xxxxxxxx & XX 00 Xxxxx Xxxxxxxx XX 00000 Multnomah $14,750,000.00
County
00 Xxxxx Xxxxxx Shopping 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxxxx $14,095,146.63
Center
22 0000 Xxxxxxx Xxxxx 0000 Xxxxxxx Xxxxx Xxxxx XX 00000 Genesee $14,000,000.00
00 Xxxxxxxxxx Xxxxx 0 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Allegheny $13,922,672.65
Apartments
00 Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000 King $12,711,007.33
00 Xxxxxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxxx Xxxxxxxxx XX 0000 Gloucester $12,466,071.09
26 Falls Pointe Shopping 9600 Falls of the Neuse Xxxxxxx XX 00000 Wake $11,800,000.00
Center Road
00 Xxxxxxxx Xxx Shopping 0000-0000 Xxxxxx Xxxxxx Xxxxx XX 00000 Butte $11,623,214.56
Center
28 Island Lakes Estates
& Villas 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 Fresno $10,960,000.00
29 Sugar Land Business Center 12610 - 00000 Xxxx Xxxxx Xxxx XX 00000 Fort Bend $10,886,442.76
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxx Xxxxxxx Medical 0000 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000 San Diego $10,707,498.89
Center
31 Merion Building 000 Xxxxx Xxxxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Xxxxxxxxxx $10,243,530.24
32 Xxxx Park Retail Xxxxxx Xxxxxxxxx & Xxxxxxxx
00xx Xxxxxx Xxxx Xxxx XX 00000 Queens $ 9,700,273.44
33 One Park Ten 00000 Xxxx Xxx Xxxxx Xxxxxxx XX 00000 Xxxxxx $ 9,517,345.21
34 Columbus Marriott 0000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 Franklin $ 9,400,281.44
Courtyard
35 Shoppes of Lake Ave 00000 Xxxxxx-Xxxxxxxx Xxxx Xxxxxxx XX 00000 Orange $ 9,200,000.00
36 Radisson/ Scanticon Hotel 0000 Xxxxx Xxx. Xxxx xx XX 00000 Xxxxxxxxxx $ 9,000,000.00
& Convention Center Prussia
37 Lakes at College Pointe 0000 Xxxxxxxxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000 Xxx $ 8,992,564.32
Phase I
00 Xxxxx Xxxx Xxxxxxx 000 Xxxxx Xxxx Xxxxx Xxxxxx Xxxx XX 00000 Oakland $ 8,981,679.14
Apartments
00 Xxxxxxxx Xxxxxxx 0000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Franklin $ 8,972,816.92
Apartments
40 Diamond Lakes 2700 Ambassador Xxxxxxx Xxxxxxxxx XX 00000 Lafayette $ 8,793,052.87
Parkway
41 950 Merchants Concourse 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Nassau $ 8,581,914.35
42 Coliseum Lofts Apartments 0000-0000 Xxxx Xxxxx Xx. Xxxxxxxx XX 00000 Henrico $ 8,548,654.76
43 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxxx XX 0000 Xxxxxx $ 8,389,253.93
00 XXX Xxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx XX Various Washtenaw $ 8,250,000.00
44.01 Mapleridge Apartments 2230 - 0000 Xxxxxx Xxxxxx Xxx Xxxxx XX 00000 Washtenaw $ 2,750,000.00
44.02 Milan Apartments 000-000 Xxxxxxxxx Xxxx Xxxxx Xx 00000 Washtenaw $ 2,175,000.00
44.03 Thorncrest Apartments 260 - 000 Xxxxx Xxxxxx Xxxxxx XX 00000 Washtenaw $ 3,325,000.00
00 Xxxxxxxxx Xxxxxxxxx Retail 0000-0000 Xxxxxxxxx Xxxx Xxxxxxxxx, XX 00000 Hartford $ 7,543,762.32
Center West Hartford
46 Commerce Corporate Center 0000 X. Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Los Angeles $ 7,221,336.46
47 Foxfire/Cloister 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx XX 00000 Guilford $ 6,409,219.81
Apartments
00 Xxxxxx Xxxxxxxxxx Xxxxxx 000 X. Xxxxx Xxxxxx/ Xxxxxx XX 00000 Fresno $ 6,162,737.05
0000-0000 X. Xxxxx Xx.
00 Xxxx Xxxx Xxxxxx 000 Xxxxx 00xx Xxxxxx Xxxxx Xxxxxx XX 00000 Jefferson $ 6,095,871.70
00 Xxxx'x Xxxxx Xxxxxxxx 0000 X Xxx 00 Xxxxxxxx XX 00000 Lake $ 5,995,033.13
Center
51 Bluffs Apartments 000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Kenoton $ 5,986,713.63
00 Xxxxxx Xxxx Xxxx 000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 0000 Kent $ 5,976,625.81
00 Xxxxxxx Xxxx Xxxxxxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 Prince $ 5,748,034.68
Xxxxxx
00 Xxxxxx Xxxxx Xxxxxx 000 Xxxxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000 Xxxxx $ 5,733,507.70
Apartments
55 000 0xx Xxxxxx 000 0xx Xxxxxx Xxx Xxxx XX 00000 New York $ 5,479,423.58
56 Xxxxxxxx Xxxxx Apartments 000 Xxxxx Xxxxxxx Xxx Xxxx Xxxxxxx XX 00000 Riverside $ 5,300,000.00
57 Longmeadow Professional 167, 171 & 000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 Hamden $ 5,260,000.00
Park
58 Steeplechase Apartments 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 Onondaga $ 5,200,000.00
00 Xxxxx Xxxxxx Xxxxx II SEC Xxxxx & Tenaya Xxx Xxxxx XX 00000 Xxxxx $ 5,122,000.00
00 Xxxxxxxx Xxxx Apartments 000-000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Los Angeles $ 4,750,700.78
00 Xxxx Xxxxxx Xxxxxxx 00 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 DuPage $ 4,593,748.97
00 Xxxxx Xxxxx Apartments 000 X. Xxxxxxxx Xxxx Xxxxxxx XX 00000 St. Louis $ 4,576,639.09
00 Xxxxxxx Xxxxx 0057 & 0000 Xxxxxxx
Xxxxxx Xxxx Xxxxxxx XX 00000 Eagle $ 4,562,445.44
64 Storage USA 0000 Xxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 Prince $ 4,494,627.07
Xxxxxxxx
65 The Corners Apartments 000 Xxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Spartanburg $ 4,380,772.54
00 Xx Xxxx Xxxxxxxx Center 0000 Xxxxxxx Xxxxx Xx Xxxx XX 00000 San Diego $ 4,373,555.35
67 Xxxxxxx Village Shopping 000-000 Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Hillsborough $ 4,340,999.30
Center Xxxxxxxxx
00 Xxxxx Xxx Apts 0000-0000 XX 00xx Xxxxxx Xxxxxxxxxx XX 00000 Broward $ 4,225,703.26
00 Xxxxxxxx Xxxx Apartments 0000 Xxxxxx Xxxx Xxx Xxxxx XX 00000 Xxxxx $ 4,213,184.13
00 Xxxxxxx Xxxx Apartments 0000 Xxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Wake $ 4,100,000.00
71 Caribbean Warehouse 3500-3560 & 0000-0000 XX Xxxxx XX 00000 Dade $ 4,000,000.00
Center II 000xx Xxxxxx
00 Xxxxxxxxx II 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Riverside $ 3,975,959.43
73 000 Xxxxxxxxx Xxxxxxxx 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 DuPage $ 3,895,518.56
00 Xxxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 00000 Summit $ 3,824,584.70
00 Xxxxxxxx'x Xxxxxx Xxxx 000 X. Xxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Santa Xxxxx $ 3,697,209.78
00 Xxxxxxx Xxxxxxxxx X.X. Xxxxx 000/XX Xxxxx Xxxxxxx XX 00000 King $ 3,675,183.59
Shopping Center Route 30 Garage Xxxxxxx
77 University Health Park 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Manatee $ 3,633,671.80
Phase I
78 Two Elm Square Two Xxx Xxxxxx & 00-00
Xxxx Xxxxxx Xxxx Xxxxxxx XX 0000 Essex $ 3,565,934.21
79 Moor's Landing 000 Xxxxxx Xxxxxx Xxxxxx'x Xxxxx XX 00000 Salem $ 3,500,000.00
80 0000-0000 Xxxx Xxxxxxxxx 0000-0000 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000 Xxxxxxx $ 3,489,428.80
Xxxxxx Xxxxxx
00 Xxxxx Xxxxx Apartments 000 X. Xxxxx Xxxxxx Xxxxx XX 00000 Brazoria $ 3,398,331.59
00 Xxxxxxxxxxxx Xxxxx 00 Xxxxxx Xxxxxxxx Xxxxxxxxxx XX 0000 Worcester $ 3,286,303.75
83 Prairie Towne Shops 0000-0000 X. Xxxxxxxxxx Xx. Xxxxxxxxxx XX 00000 Xxxx $ 3,280,072.73
00 Xxxxxxxx & Xxxxxx 0000 Xxxxxxxx Xxxxxx
Apartments & 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxxxxx XX 00000 Albemarle $ 3,214,560.07
00 Xxxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000 Xxxxx $ 3,120,000.00
Xxxxxxxxxx
00 0000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Arapahoe $ 2,901,457.67
00 Xxxxxxx Xxxxxx Apts 0000 Xxxxxxx Xx Xxxxxxxxx XX 00000 Xxxx $ 2,800,000.00
88 0000 Xxxx Xxxxxx Xxxx 0000 Xxxx Xxxxxx Xxxx Xxx Xxxxx XX 00000 Xxxxx $ 2,780,502.28
89 Railroad Y Apartments 0000 Xxxx Xxxx Xx. Xxxxxxxx XX 00000 Henrico $ 2,716,394.96
90 University Health Park II 0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 Manatee $ 2,697,988.17
00 Xxxxxx Xxxxx Xxxxxxxxxx 0000, 4052, 4062, 4072,
4082, 4092 and 0000 Xxxxxx XxxxXxxxxxxxx XX 00000 Cuyahoga $ 2,592,536.61
00 Xxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Whatcom $ 2,572,462.63
93 Town and Country Village 0000 X. Xxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 Dallas $ 2,539,738.74
-MHP
94 Brentwood East Shopping 15535-15557 Xxx Xxxxxxx Xxxxxxxxx XX 00000 Davidson $ 2,431,528.43
Center Boulevard
95 Carriage Hill Apartments 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxx $ 2,400,000.00
96 Allen Village Shopping 0000 XxXxxxxxx Xxxxx Xxxx Xxxxx XX 00000 Collin $ 2,383,637.89
Center
97 Town & Country Shopping 0000-0000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxxx $ 2,347,129.46
Center (Xxxxxxxx-Xxxxxxxx Road)
98 Detroit One Apartments 0000 X. Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 Los Angeles $ 2,021,974.20
99 4820 Coldwater Canyon 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 Los Angeles $ 1,982,132.34
Xxxxxx Xxxxxx
000 Xxxx Xxxxxxx Airport 255, 265, 000 X. Xx Xxxx Xxxxxxx XX 00000 Riverside $ 1,743,081.24
Xxxxxxxx Xxxxxx Xxxxx Xxxx.
000 Xxxxxx Airport Commerce 0000-0000 Xxxxxxx Xxxx. Xxxxxx XX 00000 Fresno $ 1,553,832.40
Center
B-1
BALLOON
LOAN SECURED
MORTGAGE MATURITY REMAINING BY GROUND MASTER ARD
LOAN PERIODIC MORTGAGE ORIGINAL REMAINING DATE OR AMORTIZATION LEASE SERVICING LOAN
NUMBER PAYMENT RATE TERM TERM ARD DATE TERM (Y/N) FEE RATE (Y/N) ARD DATE
---------------------------------------------------------------------------------------------------------------------------------
1 $ 522,042.88 7.420% 120 114 1/1/12 NAP No 0.02% Yes 1/1/12
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
2 $ 453,154.91 7.470% 120 119 6/1/12 359 No 0.02% No NAP
3 $ 496,027.07 7.870% 120 117 4/1/12 NAP No 0.02% Yes 4/1/12
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
3.09
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.21
3.22
3.23
3.24
3.25
3.26
3.27
3.28
3.29
3.30
3.31
3.32
3.33
3.34
3.35
3.36
3.37
3.38
3.39
3.40
3.41
3.42
3.43
3.44
3.45
3.46
3.47
3.48
3.49
3.50
3.51
3.52
3.53
3.54
3.55
3.56
3.57
4 $ 303,021.48 7.120% 120 119 6/1/12 359 No 0.02% No NAP
5 $ 283,736.73 7.520% 120 115 2/1/12 NAP No 0.02% Yes 2/1/12
6 $ 249,748.09 7.420% 120 117 4/1/12 NAP Yes 0.02% Yes 4/1/12
7 $ 166,566.82 6.630% 120 118 5/1/12 358 No 0.02% No NAP
8 $ 150,529.69 6.670% 60 60 7/1/07 360 No 0.02% No NAP
9 $ 155,938.98 7.410% 120 118 5/1/12 358 No 0.02% No NAP
10 $ 157,435.10 7.530% 120 109 8/1/11 360 No 0.02% No NAP
11 $ 154,989.19 7.440% 120 114 1/1/12 354 No 0.02% No NAP
12 $ 144,844.59 7.190% 120 119 6/1/12 359 No 0.02% No NAP
13 $ 135,600.44 6.800% 120 113 12/1/11 360 No 0.02% No NAP
14 $ 133,158.72 7.005% 120 110 9/1/11 350 No 0.02% No NAP
15 $ 118,481.13 6.840% 120 120 7/1/12 360 No 0.02% No NAP
16 $ 119,633.59 6.990% 120 120 7/1/12 360 No 0.02% No NAP
17 $ 112,510.14 7.110% 120 119 6/1/12 360 No 0.02% No NAP
18 $ 123,091.50 7.890% 120 109 8/1/11 289 No 0.02% No NAP
19 $ 161,458.50 7.565% 116 114 1/10/12 142 No 0.02% No NAP
20 $ 95,570.19 6.740% 60 60 7/1/07 NAP No 0.02% Yes 7/1/07
21 $ 97,489.55 7.350% 120 115 2/1/12 NAP No 0.02% Yes 2/1/12
22 $ 97,124.26 7.420% 61 61 8/1/07 NAP No 0.02% Yes 8/1/07
23 $ 86,974.27 6.330% 120 114 1/1/12 354 No 0.02% No NAP
24 $ 85,158.72 7.000% 120 111 10/1/11 351 No 0.02% No NAP
25 $ 85,611.43 7.290% 120 116 3/1/12 356 No 0.02% No NAP
26 $ 78,505.69 7.000% 120 120 7/1/12 360 No 0.02% No NAP
27 $ 80,596.54 7.370% 120 114 1/1/12 354 No 0.02% No NAP
28 $ 74,321.01 7.190% 120 120 7/1/12 360 No 0.02% No NAP
29 $ 77,037.07 7.610% 60 58 5/1/07 358 No 0.02% No NAP
30 $ 73,333.95 7.250% 94 89 12/1/09 355 No 0.02% No NAP
31 $ 69,414.29 7.130% 120 113 12/1/11 353 No 0.02% No NAP
32 $ 70,705.35 7.740% 120 114 1/1/12 336 No 0.02% No NAP
33 $ 64,011.04 7.100% 120 119 6/1/12 359 No 0.02% No NAP
34 $ 74,500.99 8.125% 120 104 3/1/11 284 No 0.02% No NAP
35 $ 66,676.15 7.280% 120 120 7/1/12 300 No 0.02% No NAP
36 $ 69,702.11 8.040% 48 48 7/1/06 NAP No 0.02% Yes 7/1/06
37 $ 59,635.65 6.960% 120 119 6/1/12 359 No 0.02% No NAP
38 $ 62,867.69 7.490% 120 117 4/1/12 357 No 0.02% No NAP
39 $ 68,719.86 7.875% 63 60 7/1/07 297 No 0.02% No NAP
40 $ 59,673.80 7.190% 120 119 6/1/12 359 No 0.02% No NAP
41 $ 59,251.60 7.350% 120 117 4/1/12 NAP No 0.02% Yes 4/1/12
42 $ 59,034.31 7.360% 120 118 5/1/12 358 No 0.02% No NAP
43 $ 58,734.02 7.500% 120 118 5/1/12 358 No 0.02% No NAP
44 $ 55,581.78 7.125% 120 120 7/1/12 360 No 0.02% No NAP
44.01
44.02
44.03
45 $ 50,027.68 6.960% 120 119 6/1/12 359 No 0.02% No NAP
46 $ 49,457.78 7.250% 94 89 12/1/09 355 No 0.02% No NAP
47 $ 47,517.13 7.500% 120 117 4/1/12 297 No 0.02% No NAP
48 $ 44,814.03 7.250% 94 89 12/1/09 295 No 0.02% No NAP
49 $ 40,914.45 7.040% 120 114 1/1/12 NAP No 0.02% Yes 1/1/12
50 $ 39,716.87 6.950% 120 119 6/1/12 359 No 0.02% No NAP
51 $ 40,423.11 7.125% 120 117 4/1/12 357 No 0.02% No NAP
52 $ 41,236.24 7.325% 96 91 2/1/10 355 No 0.02% No NAP
53 $ 42,565.89 7.500% 120 118 5/1/12 298 No 0.02% No NAP
54 $ 38,310.48 6.980% 84 76 11/1/08 352 No 0.02% No NAP
55 $ 38,569.85 7.530% 120 115 2/1/12 355 No 0.02% No NAP
56 $ 35,939.90 7.190% 120 120 7/1/12 360 No 0.02% No NAP
57 $ 36,025.29 7.290% 120 120 7/1/12 360 No 0.02% No NAP
58 $ 35,261.79 7.190% 120 120 7/1/12 360 No 0.02% No NAP
59 $ 34,214.50 7.040% 120 120 7/1/12 360 No 0.02% No NAP
60 $ 30,055.85 6.450% 60 53 12/1/06 353 No 0.02% No NAP
61 $ 31,411.32 7.260% 120 118 5/1/12 NAP No 0.02% Yes 5/1/12
62 $ 31,446.32 7.000% 120 115 2/1/12 325 No 0.02% No NAP
63 $ 33,353.19 7.875% 120 107 6/1/11 347 No 0.02% No NAP
64 $ 32,410.43 7.210% 120 119 6/1/12 299 No 0.02% No NAP
65 $ 30,584.87 7.440% 120 114 1/1/12 354 No 0.02% No NAP
66 $ 31,803.50 7.250% 94 89 12/1/09 295 No 0.02% No NAP
67 $ 30,177.89 7.420% 120 117 4/1/12 357 No 0.02% No NAP
68 $ 30,035.01 7.375% 120 116 3/1/12 326 No 0.02% No NAP
69 $ 28,151.90 6.980% 84 76 11/1/08 352 No 0.02% No NAP
70 $ 33,838.39 6.750% 204 204 7/1/19 NAP No 0.02% No NAP
71 $ 29,235.19 7.375% 120 120 7/1/12 300 No 0.02% No NAP
72 $ 28,912.27 7.250% 94 89 12/1/09 295 No 0.02% No NAP
73 $ 28,693.94 7.450% 120 119 6/1/12 299 No 0.02% No NAP
74 $ 27,581.87 7.750% 120 110 9/1/11 350 No 0.02% No NAP
75 $ 25,668.55 7.420% 120 119 6/1/12 NAP No 0.02% Yes 6/1/12
76 $ 25,504.69 7.410% 120 118 5/1/12 358 No 0.02% No NAP
77 $ 25,097.80 7.330% 120 114 1/1/12 354 No 0.02% No NAP
78 $ 25,143.96 7.560% 120 116 3/1/12 NAP No 0.02% Yes 3/1/12
79 $ 23,686.55 7.170% 120 120 7/1/12 360 No 0.02% No NAP
80 $ 26,724.39 7.875% 120 117 4/1/12 297 No 0.02% No NAP
81 $ 22,703.45 7.000% 120 115 2/1/12 355 No 0.02% No NAP
82 $ 23,667.52 7.730% 120 109 8/1/11 349 No 0.02% No NAP
83 $ 23,788.88 7.220% 120 115 2/1/12 295 No 0.02% No NAP
84 $ 21,850.19 7.200% 120 118 5/1/12 358 No 0.02% No NAP
85 $ 21,157.08 7.190% 120 120 7/1/12 360 No 0.02% No NAP
86 $ 20,217.49 7.400% 120 111 10/1/11 351 No 0.02% No NAP
87 $ 18,628.47 7.000% 120 120 7/1/12 360 No 0.02% No NAP
88 $ 20,388.95 7.875% 120 103 2/1/11 343 No 0.02% No NAP
89 $ 18,758.57 7.360% 120 118 5/1/12 358 No 0.02% No NAP
90 $ 18,841.83 7.480% 120 119 6/1/12 359 No 0.02% No NAP
91 $ 17,407.14 7.063% 120 116 3/1/12 356 No 0.02% No NAP
92 $ 17,147.48 6.990% 120 116 3/1/12 356 No 0.02% No NAP
93 $ 17,240.10 7.160% 120 115 2/1/12 355 No 0.02% No NAP
94 $ 17,653.79 7.810% 120 108 7/1/11 348 No 0.02% No NAP
95 $ 15,967.26 7.000% 120 120 7/1/12 360 No 0.02% No NAP
96 $ 17,020.33 7.640% 120 109 8/1/11 349 No 0.02% No NAP
97 $ 16,722.16 7.680% 120 118 5/1/12 358 No 0.02% No NAP
98 $ 13,848.18 7.250% 60 55 2/1/07 355 No 0.02% No NAP
99 $ 13,575.31 7.250% 60 55 2/1/07 355 No 0.02% No NAP
100 $ 11,938.08 7.250% 94 89 12/1/09 355 Yes 0.02% No NAP
101 $ 10,641.95 7.250% 94 89 12/1/09 355 No 0.02% No NAP
B-2
INSURED
BY LEASE
ADDITIONAL ENHANCEMENT SECURED BY INTEREST PAYMENTS
MORTGAGE INTEREST MORTGAGE POLICY OR DEFEASANCE A LETTER RESERVE MADE TO A
LOAN RATE FOR LOAN ENVIRONMENTAL CROSSED LOAN OF CREDIT LOAN LOCKBOX
NUMBER ARD LOAN SELLER POLICY (Y/N) (Y/N) (Y/N) (Y/N) (Y/N) (Y/N)
-----------------------------------------------------------------------------------------------------------------------------------
1 2.00% Xxxxxxx Xxxxx Various No Yes No Yes Yes
1.01 No
1.02 No
1.03 No
1.04 Yes
1.05 No
1.06 No
1.07 No
1.08 No
2 NAP Wachovia Yes No Yes No Yes No
3 2.00% Xxxxxxx Xxxxx No No Yes No Yes No
3.01 No
3.02 No
3.03 No
3.04 No
3.05 No
3.06 No
3.07 No
3.08 No
3.09 No
3.10 No
3.11 No
3.12 No
3.13 No
3.14 No
3.15 No
3.16 No
3.17 No
3.18 No
3.19 No
3.20 No
3.21 No
3.22 No
3.23 No
3.24 No
3.25 No
3.26 No
3.27 No
3.28 No
3.29 No
3.30 No
3.31 No
3.32 No
3.33 No
3.34 No
3.35 No
3.36 No
3.37 No
3.38 No
3.39 No
3.40 No
3.41 No
3.42 No
3.43 No
3.44 No
3.45 No
3.46 No
3.47 No
3.48 No
3.49 No
3.50 No
3.51 No
3.52 No
3.53 No
3.54 No
3.55 No
3.56 No
3.57 No
4 NAP Wachovia No No Yes No Yes No
5 2.00% Xxxxxxx Xxxxx No No Yes No Yes Yes
6 2.00% Xxxxxxx Xxxxx No No Yes No Yes Yes
7 NAP Xxxxxxx Xxxxx No No Yes No Yes No
8 NAP Wachovia No No Yes No Yes No
9 NAP Wachovia Yes No Yes No Yes No
10 NAP Wachovia No No Yes No Yes No
11 NAP Xxxxxxx Xxxxx No No Yes No Yes No
12 NAP Wachovia No No Yes No Yes No
13 NAP Wachovia No No Yes No Yes No
14 NAP Xxxxxxx Xxxxx No No Yes No Yes No
15 NAP Xxxxxxx Xxxxx No No Yes No Yes No
16 NAP Wachovia No Yes Yes No Yes No
17 NAP Wachovia No No Yes No Yes No
18 NAP Xxxxxxx Xxxxx No No Yes No Yes No
19 NAP Wachovia Yes No Yes No Yes Yes
20 Greater of (I) Wachovia No No Yes No Yes No
Initial Interest
Rate plus 3% or
(ii) Treasury
Constant Maturity
Yield plus 3%
21 2.00% Xxxxxxx Xxxxx No No Yes No Yes No
22 2.00% Xxxxxxx Xxxxx No No No No Yes Yes
23 NAP Xxxxxxx Xxxxx No No Yes No Yes No
24 NAP Xxxxxxx Xxxxx No No Yes No Yes No
25 NAP Xxxxxxx Xxxxx Yes No Yes No Yes No
26 NAP Wachovia No No Yes No Yes No
27 NAP Xxxxxxx Xxxxx No No No No Yes No
28 NAP Wachovia No No Yes No Yes No
29 NAP Xxxxxxx Xxxxx No No No No Yes No
30 NAP Wachovia No Yes Yes No Yes No
31 NAP Xxxxxxx Xxxxx No No No No Yes No
32 NAP Xxxxxxx Xxxxx No No Yes No Yes No
33 NAP Wachovia No No Yes No Yes No
34 NAP Xxxxxxx Xxxxx No No Yes No Yes No
35 NAP Wachovia No No Yes No Yes No
36 Greater of initial Wachovia No No No No Yes No
rate plus 3% or
the treasury index
plus 3%
37 NAP Xxxxxxx Xxxxx No No Yes No Yes No
38 NAP Xxxxxxx Xxxxx No No Yes No Yes No
39 NAP Xxxxxxx Xxxxx No No Yes No Yes No
40 NAP Wachovia No No Yes No Yes No
41 2.00% Xxxxxxx Xxxxx No No Yes No Yes Yes
42 NAP Wachovia No No Yes No Yes No
43 NAP Xxxxxxx Xxxxx No No Yes No Yes No
44 NAP Xxxxxxx Xxxxx No No Yes No Yes No
44.01 No
44.02 No
44.03 No
45 NAP Wachovia No No Yes No Yes No
46 NAP Wachovia No Yes Yes No Yes No
47 NAP Xxxxxxx Xxxxx No No Yes No Yes No
48 NAP Wachovia No Yes Yes No Yes No
49 2.00% Xxxxxxx Xxxxx No No Yes No Yes No
50 NAP Wachovia No No Yes No Yes No
51 NAP Xxxxxxx Xxxxx No No Yes No Yes No
52 NAP Xxxxxxx Xxxxx No No Yes No Yes No
53 NAP Xxxxxxx Xxxxx No No Yes No Yes No
54 NAP Xxxxxxx Xxxxx No No Yes No Yes No
55 NAP Xxxxxxx Xxxxx No No Yes No Yes No
56 NAP Wachovia No No Yes No Yes No
57 NAP Wachovia No No Yes No Yes No
58 NAP Wachovia No No Yes No Yes No
59 NAP Wachovia No Yes Yes No Yes No
60 NAP Xxxxxxx Xxxxx No No Yes No Yes No
61 greater of (i) Wachovia No No Yes No Yes No
Initial Interest
Rate plus 3% or
(ii) Treasury
Constant Maturity
Yield plus 3%
62 NAP Xxxxxxx Xxxxx No No Yes No Yes No
63 NAP Xxxxxxx Xxxxx No No Yes No Yes No
64 NAP Xxxxxxx Xxxxx No No Yes No Yes No
65 NAP Xxxxxxx Xxxxx No No Yes No Yes No
66 NAP Wachovia No Yes Yes No Yes No
67 NAP Xxxxxxx Xxxxx No No Yes No Yes No
68 NAP Xxxxxxx Xxxxx No No Yes No Yes No
69 NAP Xxxxxxx Xxxxx No No Yes No Yes No
70 NAP Xxxxxxx Xxxxx No No Yes No Yes No
71 NAP Wachovia No No Yes No Yes No
72 NAP Wachovia No Yes Yes No Yes No
73 NAP Wachovia No No Yes No Yes No
74 NAP Xxxxxxx Xxxxx Yes No Yes No Yes No
75 Greater of 3.0% Wachovia No No Yes No Yes Yes
over the current
coupon or 3.0%
over the then
corresponding
Treasury index
76 NAP Wachovia No No Yes No Yes No
77 NAP Xxxxxxx Xxxxx Yes No Yes No Yes No
78 2.00% Xxxxxxx Xxxxx Yes No Yes No Yes No
79 NAP Xxxxxxx Xxxxx No No Yes No Yes No
80 NAP Xxxxxxx Xxxxx No No Yes No Yes No
81 NAP Xxxxxxx Xxxxx No No Yes No Yes No
82 NAP Xxxxxxx Xxxxx No No Yes No Yes No
83 NAP Xxxxxxx Xxxxx No No Yes No Yes No
84 NAP Wachovia No No Yes No Yes No
85 NAP Wachovia No No Yes No Yes No
86 NAP Xxxxxxx Xxxxx No No Yes No Yes No
87 NAP Xxxxxxx Xxxxx No No Yes No Yes No
88 NAP Xxxxxxx Xxxxx No No Yes No Yes Yes
89 NAP Wachovia No No Yes No Yes No
90 NAP Xxxxxxx Xxxxx Yes No Yes No Yes No
91 NAP Xxxxxxx Xxxxx No No Yes No Yes No
92 NAP Xxxxxxx Xxxxx No No Yes No Yes No
93 NAP Xxxxxxx Xxxxx No No Yes No Yes No
94 NAP Xxxxxxx Xxxxx No No Yes No Yes No
95 NAP Xxxxxxx Xxxxx No No Yes No Yes No
96 NAP Xxxxxxx Xxxxx No No Yes No Yes No
97 NAP Xxxxxxx Xxxxx No No Yes No Yes No
98 NAP Xxxxxxx Xxxxx No Yes Yes No Yes No
99 NAP Xxxxxxx Xxxxx No Yes Yes No Yes No
100 NAP Wachovia No Yes Yes No Yes No
101 NAP Wachovia No Yes Yes No Yes No
B-3
MORTGAGE INITIAL INITIAL INITIAL ONGOING ONGOING AGGREGATE
LOAN REPAIR ENVIRONMENTAL TI/LC REPLACEMENT TI/LC TI/LC NUMBER UNIT GRACE
NUMBER RESERVE RESERVE RESERVE RESERVE RESERVE AMOUNT OF UNITS MEASUREMENT PERIOD
------------------------------------------------------------------------------------------------------------------------------------
1 $ 1,687.50 $ - $ - $ - $ - $ - 547330 SF 5
1.01 $ - $ - $ - $ - $ - $ - 79229 SF
1.02 $ - $ - $ - $ - $ - $ - 64948 SF
1.03 $ - $ - $ - $ - $ - $ - 65268 SF
1.04 $ - $ - $ - $ - $ - $ - 85799 SF
1.05 $ - $ - $ - $ - $ - $ - 63128 SF
1.06 $ - $ - $ - $ - $ - $ - 64917 SF
1.07 $ - $ - $ - $ - $ - $ - 68323 SF
1.08 $ - $ - $ - $ - $ - $ - 55718 SF
2 $ - $ - $ - $ 3,603.33 $ 6,500.00 $500,000.00 613794 SF 5
3 $ 250,156.25 $ 85,804.50 $ - $315,004.80 $ - $ - 1571812 SF 5
3.01 $ - $ - $ - $ 4,721.00 $ - $ - 23605 SF
3.02 $ - $ - $ - $ 4,740.00 $ - $ - 23700 SF
3.03 $ - $ - $ - $ 4,474.00 $ - $ - 22370 SF
3.04 $ - $ - $ - $ 6,384.80 $ - $ - 31924 SF
3.05 $ - $ - $ - $ 5,642.60 $ - $ - 27801 SF
3.06 $ - $ - $ - $ 3,850.00 $ - $ - 19250 SF
3.07 $ - $ - $ - $ 7,818.00 $ - $ - 39090 SF
3.08 $ 11,500.00 $ - $ - $ 3,799.40 $ - $ - 18997 SF
3.09 $ - $ - $ - $ 4,840.00 $ - $ - 24150 SF
3.10 $ - $ - $ - $ 3,709.80 $ - $ - 18549 SF
3.11 $ 16,237.50 $ - $ - $ 5,584.60 $ - $ - 27923 SF
3.12 $ - $ - $ - $ 4,010.00 $ - $ - 20050 SF
3.13 $ - $ 60,000.00 $ - $ 4,593.40 $ - $ - 22967 SF
3.14 $ - $ 10,500.00 $ - $ 10,287.80 $ - $ - 50769 SF
3.15 $ 19,875.00 $ - $ - $ 3,645.00 $ - $ - 18275 SF
3.16 $ 27,687.50 $ - $ - $ 5,360.00 $ - $ - 26800 SF
3.17 $ - $ - $ - $ 3,788.60 $ - $ - 18943 SF
3.18 $ - $ - $ - $ 7,045.00 $ - $ - 35225 SF
3.19 $ - $ - $ - $ 11,850.00 $ - $ - 58950 SF
3.20 $ - $ - $ - $ 4,657.60 $ - $ - 23648 SF
3.21 $ - $ - $ - $ 3,543.60 $ - $ - 17718 SF
3.22 $ - $ - $ - $ 8,008.80 $ - $ - 39884 SF
3.23 $ - $ - $ - $ 8,915.00 $ - $ - 44575 SF
3.24 $ - $ - $ - $ 9,035.00 $ - $ - 45150 SF
3.25 $ 12,625.00 $ - $ - $ 6,900.00 $ - $ - 34500 SF
3.26 $ - $ - $ - $ 3,583.20 $ - $ - 17916 SF
3.27 $ - $ - $ - $ 3,374.00 $ - $ - 16870 SF
3.28 $ 16,000.00 $ - $ - $ 3,814.80 $ - $ - 19209 SF
3.29 $ 25,187.50 $ - $ - $ 5,305.00 $ - $ - 26525 SF
3.30 $ - $ - $ - $ 3,577.60 $ - $ - 17888 SF
3.31 $ - $ - $ - $ 5,785.00 $ - $ - 28925 SF
3.32 $ 12,062.50 $ - $ - $ 4,735.00 $ - $ - 23675 SF
3.33 $ - $ 2,217.00 $ - $ 3,550.00 $ - $ - 17750 SF
3.34 $ - $ - $ - $ 3,620.00 $ - $ - 18100 SF
3.35 $ - $ - $ - $ 9,125.00 $ - $ - 45625 SF
3.36 $ - $ - $ - $ 6,140.00 $ - $ - 30700 SF
3.37 $ - $ - $ - $ 5,420.00 $ - $ - 27100 SF
3.38 $ - $ - $ - $ 4,375.00 $ - $ - 21875 SF
3.39 $ - $ - $ - $ 3,562.80 $ - $ - 17814 SF
3.40 $ 35,500.00 $ 4,740.00 $ - $ 7,241.60 $ - $ - 36208 SF
3.41 $ - $ - $ - $ 4,118.00 $ - $ - 20590 SF
3.42 $ - $ - $ - $ 4,996.80 $ - $ - 24984 SF
3.43 $ - $ 3,000.00 $ - $ 6,797.60 $ - $ - 33988 SF
3.44 $ - $ - $ - $ 4,528.40 $ - $ - 22642 SF
3.45 $ - $ - $ - $ 8,777.60 $ - $ - 43738 SF
3.46 $ - $ - $ - $ 3,876.20 $ - $ - 19381 SF
3.47 $ - $ - $ - $ 4,070.00 $ - $ - 20350 SF
3.48 $ - $ 1,597.50 $ - $ 7,249.20 $ - $ - 34356 SF
3.49 $ - $ - $ - $ 4,370.00 $ - $ - 21850 SF
3.50 $ - $ - $ - $ 4,824.00 $ - $ - 24120 SF
3.51 $ 15,062.50 $ 3,750.00 $ - $ 3,086.20 $ - $ - 15431 SF
3.52 $ 18,200.00 $ - $ - $ 5,011.60 $ - $ - 24958 SF
3.53 $ 17,468.75 $ - $ - $ 3,284.00 $ - $ - 16420 SF
3.54 $ 22,750.00 $ - $ - $ 4,726.80 $ - $ - 23634 SF
3.55 $ - $ - $ - $ 6,512.00 $ - $ - 32560 SF
3.56 $ - $ - $ - $ 6,660.00 $ - $ - 33300 SF
3.57 $ - $ - $ - $ 11,703.40 $ - $ - 58517 SF
4 $ 89,500.00 $ - $ - $ 4,056.94 $16,700.00 $ - 324079 SF 7
5 $ - $ - $ - $ 6,671.00 $30,000.00 $675,000.00 403276 SF 5
6 $ - $ - $ - $ 7,038.00 $19,000.00 $450,000.00 346265 SF 5
7 $ - $ - $ 109,500.00 $ 9,125.00 $ - $ - 438 Units 5
8 $ 435,350.00 $ - $ - $ 4,900.00 $ - $ - 280 Units 7
9 $ 20,075.00 $ 87,500.00 $ 254,134.61 $ 2,678.09 $ 7,500.00 NAP 214673 SF 7
10 $ - $ - $ 250,000.00 $ 2,143.87 $ - $690,000.00 257264 SF 7
11 $ - $ - $ 600,000.00 $ 2,878.00 $ - $ - 345056 SF 5
12 $ 74,625.00 $ - $ - $ 10,645.83 $ - $ - 510 Units 7
13 $ - $ - $ - $ 4,316.67 $ - $ - 259 Units 7
14 $ 1,000.00 $ - $ - $ 8,391.00 $ - $ - 398 Units 5
15 $ - $ - $ - $ 2,065.17 $ 6,174.00 $518,600.00 165210 SF 5
16 $ - $ - $ 354,500.00 $ 996.45 $ - $150,000.00 119574 SF 7
17 $ - $ - $ - $ 6,750.00 $ - $ - 324 Units 7
18 $ 124,375.00 $ - $ - $ 30,006.00 $ - $ - 122 Rooms 5
19 $ 75,000.00 $ - $ - $ 1,684.48 $ - $ - 126336 SF 0
20 $ 29,125.00 $ - $ - $ 1,517.61 $ - $100,000.00 100062 SF 7
21 $ 62,250.00 $ - $ - $ 1,015.00 $ - $ - 280266 SF 5
22 $ - $ - $ - $ 5,094.00 $10,187.50 $621,437.50 407500 SF 5
23 $ 79,750.00 $ - $ - $ 6,646.00 $ - $ - 319 Units 5
24 $ - $ - $ - $ 2,958.00 $ - $ - 142 Units 5
25 $1, 440,960.00 $250,000.00 $ - $ - $ - $ - 456 Units 5
26 $ - $ - $ - $ 408.77 $ - $ - 98105 SF 7
27 $ - $ - $ - $ 1,279.00 $ 6,228.00 $180,600.00 102326 SF 5
28 $ 5,156.25 $ - $ - $ - $ - $ - 198 Units 7
29 $ - $ - $ 800,000.00 $ 2,633.00 $45,833.00 $550,000.00 315901 SF 5
30 $ 12,700.00 $ - $ - $ 1,367.07 $ 6,666.67 $ - 82024 SF 7
31 $ - $ - $ - $ 1,221.00 $ 6,066.00 $326,900.00 72892 SF 5
32 $ - $ - $ - $ 569.00 $ 6,000.00 $270,000.00 34150 SF 5
33 $ - $ - $ - $ 1,749.03 NAP $750,000.00 161616 SF 7
34 $ - $ - $ - $ 15,543.00 $ - $ - 150 Rooms 5
35 $ - $ - $ - $ - $ - $ - 64543 SF 7
36 $ 62,812.50 $ - $ - $ 90,461.43 $ - $ - 479 Rooms 7
37 $ - $ - $ - $ 2,467.00 $ - $ - 148 Units 5
38 $ - $ - $ - $ - $ - $ - 201 Units 5
39 $ 232,625.00 $ - $ - $ 12,900.00 $ - $ - 516 Units 5
40 $ 25,431.25 $ - $ - $ - $ - $ - 312 Units 7
41 $ - $ - $ - $ 863.00 $10,500.00 $500,000.00 69039 SF 5
42 $ 2,637.50 $ - $ - $ 3,000.00 $ - $ - 120 Units 7
43 $ - $ - $ 50,000.00 $ 1,069.00 $ 5,250.00 $175,000.00 43812 SF 5
44 $ 355,088.75 $ - $ - $ - $ - $ - 272 Units 5
44.01 $ 152,041.25 $ - $ - $ - $ - $ - 80 Units
44.02 $ 110,047.50 $ - $ - $ - $ - $ - 72 Units
44.03 $ 93,000.00 $ - $ - $ - $ - $ - 120 Units
45 $ - $ - $ - $ 595.01 $ - $ - 71401 SF 7
46 $ 2,625.00 $ - $ - $ 1,103.73 $ 2,916.67 $ - 67000 SF 7
47 $ 50,703.00 $ - $ - $ 5,857.17 $ - $ - 226 Units 5
48 $ 34,615.00 $ - $ 100,000.00 $ 3,313.56 $ 4,166.67 $ - 265085 SF 7
49 $ 62,612.50 $ - $ - $ 1,180.00 $ 1,800.00 $100,000.00 94428 SF 5
50 $ - $ - $ - $ - $ - $ - 78979 SF 7
51 $ 11,875.00 $ - $ - $ 3,397.00 $ - $ - 160 Units 5
52 $ - $ - $ - $ 1,237.00 $ 3,200.00 $200,000.00 59394 SF 5
53 $ 15,000.00 $ - $ - $ 3,425.50 $ - $ - 78 Units 5
54 $ 69,338.00 $ - $ - $ 4,375.00 $ - $ - 175 Units 5
55 $ 24,938.00 $ - $ - $ 438.00 $ - $ - 17000 SF 5
56 $ 18,387.50 $ - $ - $ - $ - $ - 118 Units 7
57 $ 12,462.50 $ - $ - $ - $ - $ - 79534 SF 7
58 $ - $ - $ - $ - $ - $ - 146 Units 7
59 $ - $ - $ - $ 280.00 $ - $100,000.00 33600 SF 7
60 $ 22,750.00 $ - $ - $ 1,000.00 $ - $ - 48 Units 5
61 $ 3,250.00 $ - $1,403,382.00 $ 255.33 NAP $ 40,000.00 25533 SF 7
62 $ - $ - $ - $ 688.00 $ - $ - 33 Units 5
63 $ - $ - $ - $ 392.00 $ 4,674.00 $107,500.00 31406 SF 5
64 $ - $ - $ - $ 834.69 $ - $ - 66775 SF 5
65 $ - $ - $ - $ 4,297.00 $ - $ - 176 SF 5
66 $ - $ - $ - $ 865.10 $ 1,666.67 $ - 57673 SF 7
67 $ - $ - $ 340,000.00 $ 968.00 $ 3,333.00 $120,000.00 77670 SF 5
68 $ 26,875.00 $ - $ - $ 2,479.17 $ - $ - 119 Units 5
69 $ 103,000.00 $ - $ - $ 3,375.00 $ - $ - 135 Units 5
70 $ 25,000.00 $ - $ - $ 3,268.00 $ - $ - 152 Units 5
71 $ - $ - $ - $ - $ - NAP 90779 SF 7
72 $ 1,500.00 $ - $ 85,000.00 $ 2,187.72 $ 1,333.33 $ - 131263 SF 7
73 $ - $ - $ - $ 1,099.25 NAP $ 48,000.00 131910 SF 7
74 $ - $ - $ 50,000.00 $ 1,498.00 $ 8,962.00 $283,000.00 78128 SF 5
75 $ - $ - $ - $ 124.80 $ - $ - 14976 SF 7
76 $ - $ - $ - $ 441.48 NAP $ - 52978 SF 7
77 $ - $ - $ - $ 500.00 $ 3,500.00 $100,000.00 28997 SF 5
78 $ 12,500.00 $ - $ 50,000.00 $ 500.00 $ 3,333.00 $125,000.00 29986 SF 5
79 $ 16,875.00 $ - $ - $ 2,500.00 $ - $ - 121 Units 5
80 $ - $ - $ - $ 1,308.00 $ 3,095.00 $ 65,000.00 104666 SF 10
81 $ - $ - $ - $ 3,500.00 $ - $ - 168 Units 5
82 $ 86,250.00 $ - $ - $ 349.00 $ 4,428.00 $212,500.00 27881 SF 5
83 $ - $ - $ - $ 193.00 $ 1,607.00 $192,840.00 15429 SF 5
84 $ 187.50 $ - $ - $ 625.00 $ - $ - 25 Units 7
85 $ 9,256.25 $ - $ - $ - $ - $ - 108 Units 7
86 $ 35,500.00 $ - $ - $ 761.00 $ 4,217.00 $ 97,000.00 39627 SF 5
87 $ 146,000.00 $ - $ - $ 4,229.17 $ - $ - 200 Units 5
88 $ - $ - $ - $ 347.00 $ - $ - 27799 SF 5
89 $ - $ - $ - $ 666.67 $ - $ - 32 Units 7
90 $ - $ - $ - $ 350.00 $ 2,000.00 $100,000.00 21460 SF 5
91 $ 1,000.00 $ - $ - $ 1,646.00 $ - $ - 79 Units 5
92 $ - $ - $ - $ 1,083.00 $ - $ - 52 Units 5
93 $ 43,140.00 $ - $ - $ 675.00 $ - $ - 150 Pads 10
94 $ - $ - $ - $ 237.00 $ 834.00 $100,080.00 18984 SF 5
95 $ 848,125.00 $ - $ - $ 3,000.00 $ - $ - 144 Units 5
96 $ - $ - $ 108,187.74 $ 250.00 $ 2,222.00 $200,000.00 20000 SF 5
97 $ - $ - $ - $ 1,009.00 $ 3,334.00 $200,000.00 80709 SF 5
98 $ - $ - $ - $ 333.00 $ - $ - 16 Units 5
99 $ 375.00 $ - $ - $ 375.00 $ - $ - 18 Units 5
100 $ - $ - $ - $ 1,414.73 $ 2,500.00 $ - 62877 SF 7
101 $ 18,250.00 $ - $ - $ 640.53 $ 1,500.00 $ - 51844 SF 7
B-4
MORTGAGE SPECIFIC ORIGINAL INTEREST
LOAN PROPERTY PROPERTY PRINCIPAL ACCRUAL
NUMBER TYPE TYPE BALANCE METHOD
------------------------------------------------------------------------------------------------
1 Retail Anchored $75,250,000.00 Actual 360
1.01 Retail Anchored $12,536,475.58
1.02 Retail Anchored $10,979,149.42
1.03 Retail Anchored $10,901,283.11
1.04 Retail Anchored $11,212,748.34
1.05 Retail Anchored $ 8,175,962.33
1.06 Retail Anchored $ 9,032,491.72
1.07 Retail Anchored $ 8,331,694.95
1.08 Retail Anchored $ 4,080,194.54
2 Retail Anchored $65,000,000.00 Actual 360
3 Self Storage Self Storage $64,991,000.00 Actual 360
3.01 Self Storage Self Storage $ 1,941,000.00
3.02 Self Storage Self Storage $ 735,000.00
3.03 Self Storage Self Storage $ 1,378,000.00
3.04 Self Storage Self Storage $ 1,335,000.00
3.05 Self Storage Self Storage $ 515,000.00
3.06 Self Storage Self Storage $ 416,000.00
3.07 Self Storage Self Storage $ 700,000.00
3.08 Self Storage Self Storage $ 796,000.00
3.09 Self Storage Self Storage $ 555,000.00
3.10 Self Storage Self Storage $ 357,000.00
3.11 Self Storage Self Storage $ 1,121,000.00
3.12 Self Storage Self Storage $ 680,000.00
3.13 Self Storage Self Storage $ 1,247,000.00
3.14 Self Storage Self Storage $ 3,710,000.00
3.15 Self Storage Self Storage $ 1,873,000.00
3.16 Self Storage Self Storage $ 1,007,000.00
3.17 Self Storage Self Storage $ 571,000.00
3.18 Self Storage Self Storage $ 930,000.00
3.19 Self Storage Self Storage $ 1,974,000.00
3.20 Self Storage Self Storage $ 1,736,000.00
3.21 Self Storage Self Storage $ 1,309,000.00
3.22 Self Storage Self Storage $ 2,152,000.00
3.23 Self Storage Self Storage $ 1,533,000.00
3.24 Self Storage Self Storage $ 2,272,000.00
3.25 Self Storage Self Storage $ 877,000.00
3.26 Self Storage Self Storage $ 605,000.00
3.27 Self Storage Self Storage $ 421,000.00
3.28 Self Storage Self Storage $ 543,000.00
3.29 Self Storage Self Storage $ 1,043,000.00
3.30 Self Storage Self Storage $ 906,000.00
3.31 Self Storage Self Storage $ 805,000.00
3.32 Self Storage Self Storage $ 1,322,000.00
3.33 Self Storage Self Storage $ 622,000.00
3.34 Self Storage Self Storage $ 535,000.00
3.35 Self Storage Self Storage $ 2,070,000.00
3.36 Self Storage Self Storage $ 1,011,000.00
3.37 Self Storage Self Storage $ 818,000.00
3.38 Self Storage Self Storage $ 894,000.00
3.39 Self Storage Self Storage $ 915,000.00
3.40 Self Storage Self Storage $ 930,000.00
3.41 Self Storage Self Storage $ 404,000.00
3.42 Self Storage Self Storage $ 727,000.00
3.43 Self Storage Self Storage $ 832,000.00
3.44 Self Storage Self Storage $ 684,000.00
3.45 Self Storage Self Storage $ 1,614,000.00
3.46 Self Storage Self Storage $ 516,000.00
3.47 Self Storage Self Storage $ 763,000.00
3.48 Self Storage Self Storage $ 1,140,000.00
3.49 Self Storage Self Storage $ 1,234,000.00
3.50 Self Storage Self Storage $ 1,086,000.00
3.51 Self Storage Self Storage $ 1,481,000.00
3.52 Self Storage Self Storage $ 3,150,000.00
3.53 Self Storage Self Storage $ 928,000.00
3.54 Self Storage Self Storage $ 1,330,000.00
3.55 Self Storage Self Storage $ 1,610,000.00
3.56 Self Storage Self Storage $ 967,000.00
3.57 Self Storage Self Storage $ 1,365,000.00
4 Retail Anchored $45,000,000.00 Actual 360
5 Office CBD $40,500,000.00 Actual 360
6 Office Suburban $36,000,000.00 Actual 360
7 Multifamily Conventional $26,000,000.00 Actual 360
8 Multifamily Conventional $23,400,000.00 Actual 360
9 Retail Anchored $22,500,000.00 Actual 360
10 Office Suburban $22,450,000.00 Actual 360
11 Retail Anchored $22,297,055.00 Actual 360
12 Multifamily Conventional $21,360,000.00 Actual 360
13 Multifamily Conventional $20,800,000.00 Actual 360
14 Multifamily Conventional $19,200,000.00 Actual 360
15 Retail Anchored $18,100,000.00 Actual 360
16 Retail Anchored $18,000,000.00 Actual 360
17 Multifamily Conventional $16,725,000.00 Actual 360
18 Hospitality Extended Stay $16,100,000.00 Actual 360
19 Office Suburban $15,250,000.00 Actual 360
20 Mixed Use Retail/Multifamily $14,750,000.00 Actual 360
21 Retail Anchored $14,150,000.00 Actual 360
22 Industrial Warehouse $14,000,000.00 Actual 360
23 Multifamily Conventional $14,000,000.00 Actual 360
24 Multifamily Conventional $12,800,000.00 Actual 360
25 Multifamily Conventional $12,500,000.00 Actual 360
26 Retail Anchored $11,800,000.00 Actual 360
27 Retail Anchored $11,675,000.00 Actual 360
28 Multifamily Conventional $10,960,000.00 Actual 360
29 Industrial Warehouse $10,900,000.00 Actual 360
30 Office Medical $10,750,000.00 Actual 360
31 Office Suburban $10,298,000.00 Actual 360
32 Retail Unanchored $ 9,746,000.00 Actual 360
33 Office Suburban $ 9,525,000.00 Actual 360
34 Hospitality Limited Service Hote $ 9,550,000.00 Actual 360
35 Retail Anchored $ 9,200,000.00 Actual 360
36 Hospitality Full Service $ 9,000,000.00 Actual 360
37 Multifamily Conventional $ 9,000,000.00 Actual 360
38 Multifamily Conventional $ 9,000,000.00 Actual 360
39 Multifamily Conventional $ 9,000,000.00 Actual 360
40 Multifamily Conventional/Section $88,800,000.00 Actual 360
41 Retail Anchored $ 8,600,000.00 Actual 360
42 Multifamily Conventional $ 8,560,000.00 Actual 360
43 Office Suburban $ 8,400,000.00 Actual 360
44 Multifamily Conventional $ 8,250,000.00 Actual 360
44.01 Multifamily Conventional $ 2,750,000.00
44.02 Multifamily Conventional $ 2,175,000.00
44.03 Multifamily Conventional $ 3,325,000.00
45 Retail Anchored $ 7,550,000.00 Actual 360
46 Office Suburban $ 7,250,000.00 Actual 360
47 Multifamily Conventional $ 6,430,000.00 Actual 360
48 Industrial Distribution $ 6,200,000.00 Actual 360
49 Retail Anchored $ 6,125,000.00 Actual 360
50 Retail Anchored $ 6,000,000.00 Actual 360
51 Multifamily Conventional $ 6,000,000.00 Actual 360
52 Office Suburban $ 6,000,000.00 Actual 360
53 Multifamily Student $ 5,760,000.00 Actual 360
54 Multifamily Conventional $ 5,770,000.00 Actual 360
55 Office CBD $ 5,500,000.00 Actual 360
56 Multifamily Conventional $ 5,300,000.00 Actual 360
57 Office Suburban $ 5,260,000.00 Actual 360
58 Multifamily Conventional $ 5,200,000.00 Actual 360
59 Retail Shadow Anchored $ 5,122,000.00 Actual 360
60 Multifamily Conventional $ 4,780,000.00 Actual 360
61 Office Suburban $ 4,600,000.00 Actual 360
62 Multifamily Conventional $ 4,600,000.00 Actual 360
63 Mixed Use Office/Retail $ 4,600,000.00 Actual 360
64 Self Storage Self Storage $ 4,500,000.00 Actual 360
65 Multifamily Conventional $ 4,400,000.00 Actual 360
66 Retail Unanchored $ 4,400,000.00 Actual 360
67 Retail Shadow Anchored $ 4,350,000.00 Actual 360
68 Multifamily Conventional $ 4,240,000.00 Actual 360
69 Multifamily Conventional $ 4,240,000.00 Actual 360
70 Multifamily Conventional $ 4,100,000.00 Actual 360
71 Industrial Distribution $ 4,000,000.00 Actual 360
72 Industrial Warehouse/Distribution $ 4,000,000.00 Actual 360
73 Industrial Bulk $ 3,900,000.00 Actual 360
74 Office Office/Retail $ 3,850,000.00 Actual 360
75 Retail Anchored $ 3,700,000.00 Actual 360
76 Retail Anchored $ 3,680,000.00 Actual 360
77 Office Medical $ 3,650,000.00 Actual 360
78 Mixed Use Office/Retail $ 3,575,000.00 Actual 360
79 Multifamily Conventional $ 3,500,000.00 Actual 360
80 Retail Anchored $ 3,500,000.00 Actual 360
81 Multifamily Conventional $ 3,412,500.00 Actual 360
82 Retail Unanchored $ 3,310,000.00 Actual 360
83 Retail Shadow Anchored $ 3,300,000.00 Actual 360
84 Multifamily Student Housing $ 3,219,000.00 Actual 360
85 Multifamily Conventional $ 3,120,000.00 Actual 360
86 Office Suburban $ 2,920,000.00 Actual 360
87 Multifamily Conventional $ 2,800,000.00 Actual 360
88 Office Suburban $ 2,812,000.00 Actual 360
89 Multifamily Conventional $ 2,720,000.00 Actual 360
90 Office Medical $ 2,700,000.00 Actual 360
91 Multifamily Conventional $ 2,600,000.00 Actual 360
92 Multifamily Conventional $ 2,580,000.00 Actual 360
93 Manufactured Housing Manufactured Housing $ 2,550,000.00 Actual 360
94 Retail Unanchored $ 2,450,000.00 Actual 360
95 Multifamily Conventional $ 2,400,000.00 Actual 360
96 Retail Unanchored $ 2,401,200.00 Actual 360
97 Retail Anchored $ 2,350,000.00 Actual 360
98 Multifamily Conventional $ 2,030,000.00 Actual 360
99 Multifamily Conventional $ 1,990,000.00 Actual 360
100 Office Suburban $ 1,750,000.00 Actual 360
101 Office Suburban $ 1,560,000.00 Actual 360
B-5
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
None.
C-1-1
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
Xxxxxxx Xxxxx Mortgage Lending, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx - URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxx Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
Wachovia Securities
One Wachovia Center NC0602
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Lend Lease Asset Management, L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
Ladies and Gentlemen:
LaSalle Bank National Association, as Trustee, hereby certifies to the above
referenced parties that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (v)
and (vii), and to the extent provided in the related Mortgage File and actually
known by a Responsible Officer of the Trustee to be required, clauses (iii),
(iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage Loan Seller constituting the related Mortgage. File have
been reviewed by it and appear regular on their face and appear to relate to
such Mortgage
C-2-1
Loan, (iii) based on such examination and only as to the foregoing documents,
the information set forth in the Mortgage Loan Schedule for such Mortgage Loan
with respect to the items specified in clauses (v) and (vi)(c) of the definition
of "Mortgage Loan Schedule" is correct.
None of the Trustee, the Master Servicer, the Special Servicer or any Custodian
is under any duty or obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, enforceable, in recordable form, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing Agreement.
Respectfully, LASALLE BANK NATIONAL ASSOCIATION
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
X-0-0
XXXXXXX X-0
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you
as Trustee under a certain Pooling and Servicing Agreement dated as of July 10,
2002 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Lend Lease Asset Management, L.P., as Special Servicer, ABN
AMRO Bank N.V., as fiscal agent, and you, as Trustee, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Attn:
------------------------------------------
Phone:
------------------------------------------
D-1-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited to
the Certificate Account pursuant to the Pooling and Servicing
Agreement have been or will be so credited.
_____ 2. Other. (Describe)
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Master Servicer
By:
---------------------------------------------
Name
--------------------------------------
Title:
--------------------------------------
X-0-0
XXXXXXX X-0
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS)-Mortgage Document Custody
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002 -MW1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you
as Trustee under a certain Pooling and Servicing Agreement dated as of July 10,
2002 (the "Pooling and Servicing Agreement"), by and among Xxxxxxx Xxxxx
Mortgage Investors, Inc., as Depositor, Wachovia Bank, National Association, as
Master Servicer, Lend Lease Asset Management, L.P., as Special Servicer, ABN
AMRO Bank N.V., as fiscal agent, and you, as Trustee, the undersigned hereby
requests a release of the Mortgage File (or the portion thereof specified below)
held by you with respect to the following described Mortgage Loan for the reason
indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Attn:
--------------------------------------
Phone:
--------------------------------------
D-2-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan is being foreclosed.
_____ 2. Other. (Describe)
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
LEND LEASE ASSET MANAGEMENT, L.P.
as Special Servicer
By:
---------------------------------------------
Name
------------------------------------
Title:
------------------------------------
D-2-2
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
replacement reserves and an allowance for vacancies and credit losses. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining vacancy for the "revenue" component of Net Cash Flow for
each Rental Property, the Special Servicer shall rely on the most recent rent
roll supplied by the related borrower and where the actual vacancy shown thereon
and the market vacancy is less than 1%, the Special Servicer shall assume a 1%
vacancy in determining revenue from rents, except that in the case of certain
anchored shopping centers, space occupied by anchor or single tenants or other
large tenants shall be disregarded in performing the vacancy adjustment due to
the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In determining the "expense" component of Net Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.1% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be
E-1
assumed and, with respect to single tenant properties, where fees as low as 3%
of effective gross receipts shall be assumed), (c) assumptions shall be made
with respect to reserves for leasing commission, tenant improvement expenses and
capital expenditures and (d) expenses shall be assumed to include annual
replacement reserves. In addition, in some instances, the Special Servicer may
recharacterize as capital expenditures those items reported by borrowers as
operating expenses (thus increasing "net cash flow") where determined
appropriate.
E-2
EXHIBIT F
FORM OF UPDATED COLLECTION REPORT
UPDATED COLLECTION REPORT
Servicer
Wachovia Bank, National Association
For the Collection Period Ending:
Master Servicer Remittance Date
UPDATED COLLECTION REPORT
--------------------------------------------------------------------------------------------------------------------------------
PRIMARY PROSPECTUS PRIMARY SCHEDULED SCHEDULED CURRENT CURRENT PAID TO DATE UPDATED PRIMARY SUB
SERVICER LOAN LOAN PRINCIPAL INTEREST PRINCIPAL INTEREST AT PAID TO SERVICER SERVICER
ID NUMBER NUMBER AMOUNT AMOUNT ADVANCE ADVANCE DETERMINATION DATE FEES FEES
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------
MASTER
SERVICER RETAINED NET
FEES FEES ADVANCE
--------------------------------
--------------------------------
F-1
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group, Xxxxxxx Xxxxx Mortgage
Trust, Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by the "Transferor" to (the "Transferee") of a Certificate (the
"Transferred Certificate") having an initial [principal balance] [notional
amount] as of July 11, 2002 (the "Closing Date") of $ evidencing a %
percentage interest in the Class to which it belongs. The Certificates were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of July 10, 2002, among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, Wachovia Bank, National Association, as master
servicer, Lend Lease Asset Management, L.P., as special servicer, LaSalle Bank
National Association, as trustee, and ABN AMRO Bank N.V., as fiscal agent. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificate with the full right to transfer such Certificate free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accepted a transfer, pledge or other disposition of any Certificate,
any interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Certificate under the Securities Act of 1933, as
amended (the "Securities Act"), or would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities laws, or
G-1-1
would require registration or qualification of any Certificate pursuant
to the Securities Act or any state securities laws.
Very truly yours,
-------------------------------------------------
(Transferor)
By:
--------------------------------------------
Name:
------------------------------------
Title:
------------------------------------
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBS
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group, Xxxxxxx Xxxxx Mortgage
Trust, Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
by (the "Transferor") to (the "Transferee") of a Certificate (the
"Transferred Certificate") having an initial [principal balance] [notional
amount] as of July 11, 2002 (the "Closing Date") of $______evidencing a __%
percentage interest in the Class to which it belongs. The Certificates were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of July 10, 2002, among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, Wachovia Bank, National Association, as master
servicer, Lend Lease Asset Management, L.P., as special servicer, LaSalle Bank
National Association, as trustee, and ABN AMRO Bank N.V., as fiscal agent. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that
term is defined in Rule 144A ("Rule 144A") under the Securities Act of
1933, as amended (the "Securities Act") and has completed one of the
forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in
reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified
institutional buyer, and understands that such Certificate may be
resold, pledged or transferred only (i) to a person reasonably believed
to be a qualified institutional buyer that purchases for its own
account or for the account of a qualified institutional buyer to whom
notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. [For Class E, Class F, Class G, Class XC or Class XP
Certificates.] [The Transferee either (A) is not an "employee benefit
plan" subject to Title I of ERISA or a "plan" described by Section
4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold
G-2-1
plan assets of the foregoing by reason of a plan's investment in such
entity (each, a "Plan") or (B) (1) qualifies as an accredited investor
as defined in Rule 501(a)(1) of Regulation D under the Securities Act
and satisfies all the requirements of the Exemptions as in effect at
the time of such transfer or (2) is an insurance company general
account that is eligible for, and satisfies all of the requirements
for, exemptive relief under Sections I and III of Department of Labor
Prohibited Transaction Class Exemption 95-60. The Transferee will not
transfer the transferred certificate in violation of the foregoing.]
[For Class H, Class J, Class K, Class L, Class M, Class N or
Class O Certificates] [The Transferee either (A) is not an "employee
benefit plan" subject to Title I of ERISA or a "plan" described by
Section 4975(e)(1) of the Code or any other retirement plan or other
employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and
the Code, or any entity deemed to hold plan assets of the foregoing by
reason of a plan's investment in such entity (each, a "Plan") or (B) is
an insurance company general account which is eligible for, and
satisfies all of the requirements for, exemptive relief under Sections
I and III of Department of Labor Prohibited Transaction Class Exemption
95-60. The Transferee will not transfer the transferred certificate in
violation of the foregoing.]
3. The Transferee has been furnished with all information
regarding (a) the Certificates and distributions thereon, (b) the
nature, performance and servicing of the Mortgage Loans, (c) the
Pooling and Servicing Agreement, and (d) any credit enhancement
mechanism associated with the Certificates, that it has requested.
4. The Transferee has been furnished a copy of the Private
Placement Memorandum dated June 26, 2002 and has read such Private
Placement Memorandum.
5. The Transferee understands that it may not sell or
otherwise transfer any portion of its interest in the Transferred
Certificate except in compliance with the provisions of Section 5.02 of
the Pooling and Servicing Agreement, which provisions it has carefully
reviewed, and that the Transferred Certificate will bear legends
substantially to the following effect:
[In the case of the Unregistered Certificates]: THE
CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR
OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
G-2-2
-AND-
[In the case of Class R-I, Class R-II, Class Z-I or Class Z-II
Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST
THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT
TO TITLE I OF ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED TO HOLD
PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT
IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Class H, Class J, Class K, Class L, Class M,
Class N or Class O Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A
"PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE CODE, OR ANY
OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND
THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY
(EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY GENERAL
ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE
DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN
VIOLATION OF THE FOREGOING.
6. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a pledge, disposition or other transfer of any Certificate, any
interest in any Certificate or any other similar security from any
person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
G-2-3
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of the
acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render
the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate.
Very truly yours,
-------------------------------------------------
(Transferee)
By:
-------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
G-2-4
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and LaSalle Bank National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis
$ / in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A) [Transferee must own and/or
invest on a discretionary basis at least $100,000,000 in securities unless
Transferee is a dealer, and, in that case, Transferee must own and/or invest on,
a discretionary basis at least $10,000,000 in securities.] and (ii) the
Transferee satisfies the criteria in the category marked below.
_______ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended.
_______ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
_______ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest
G-2-5
annual financial statements, a copy of which is attached
hereto, as of a date not more than 16 months preceding the
date of sale of the Certificate in the case of a U.S. savings
and loan association, and not more than 18 months preceding
such date of sale for a foreign savings and loan association
or equivalent institution.
_______ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934.
_______ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
_______ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
________ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.
________ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
________ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting
G-2-6
principles and if the investments of such subsidiaries are managed under the
Transferee's direction. However, such securities were not included if the
Transferee is a majority-owned, consolidated subsidiary of another enterprise
and the Transferee is not itself a reporting company under the Securities
Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
Will the Transferee be purchasing the
Transferred Certificate only for the
-------------- ------------ Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
Print Name of Transferee
By:
-------------------------------------------
Name
----------------------------------
Title:
----------------------------------
Date:
----------------------------------
G-2-7
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of
Transferor] (the "Transferor") and LaSalle Bank National Association, as
Certificate Registrar, with respect to the mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee's Family
of Investment Companies owned, at least $100,000,000 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee's Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
_______ The Transferee owned and/or invested on a
discretionary basis $______ in securities (other than
the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule
144A).
_______ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______ in
securities (other than the excluded securities
referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
In the case of a Class R-I, Class R-II, Class Z-I or Class
Z-II Certificate, the Transferee is not an "employee benefit plan" subject to
Title I of ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement subject to
any federal, state or local law materially similar to the foregoing provisions
of ERISA and the Code, or any entity deemed to hold plan assets of the foregoing
by reason of a plan's investment in such entity.
G-2-8
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the
Transferred Certificate only for the
---------- ---------- Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Advisor
By:
------------------------------------------------
Name
------------------------------------
Title:
------------------------------------
G-2-9
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBS
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group, Xxxxxxx Xxxxx Mortgage
Trust, Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to _________________ (the "Transferee") of a
Certificate (the "Transferred Certificate") having an initial [principal
balance] [notional amount] as of July 11, 2002 (the "Closing Date") of
$___________ evidencing a ___% percentage interest in the Class to which it
belongs. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of July 10, 2002,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"),
Wachovia Bank, National Association, as master servicer, Lend Lease Asset
Management, L.P., as special servicer, LaSalle Bank National Association, as
trustee, and ABN AMRO Bank N.V., as fiscal agent. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) the Certificates may not be resold or transferred unless
they are (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either (A)
certifications from both the transferor and the transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an
G-3-1
opinion of counsel satisfactory to the Certificate Registrar with respect to the
availability of such exemption (which Opinion of Counsel shall not be an expense
of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with copies of the certification(s) from the
Transferor and/or Transferee setting forth the facts surrounding the transfer
upon which such opinion is based. Any holder of a Certificate desiring to effect
such a transfer shall, and upon acquisition of such Certificate shall be deemed
to have agreed to, indemnify the Trustee, the Certificate Registrar and the
Depositor against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that the Transferred Certificate
will bear legends substantially to the following effect:
[In the case of Unregistered Certificates]: THE CERTIFICATE
HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class R-I, Class R-II, Class Z-I or Class Z-II
Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE
MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I OF ERISA OR A "PLAN"
DESCRIBED BY SECTION 4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR
OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE,
OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
[In the case of Class H, Class J, Class K, Class L, Class M,
Class N or Class O Certificates]: NO TRANSFER OF THIS CERTIFICATE OR ANY
INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN" SUBJECT TO TITLE I
OF ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(e)(1) OF THE CODE, OR ANY OTHER
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY
FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF
ERISA AND THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY
REASON OF A
G-3-2
PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE
COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH PERSON
WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Certificates and distributions thereon, (c) the Pooling
and Servicing Agreement, and (d) all related matters, that it has requested.
6. The Transferee has been furnished a copy of the Private Placement
Memorandum dated June 26, 2002 and has read such Private Placement Memorandum.
7. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificates; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
8. [For Class E, Class F, Class G, Class XC or Class XP Certificates.]
[The Transferee either (A) is not an "employee benefit plan" subject to Title I
of ERISA or a "plan" described by Section 4975(e)(1) of the Code or any other
retirement plan or other employee benefit plan or arrangement subject to any
federal, state or local law materially similar to the foregoing provisions of
ERISA and the Code, or any entity deemed to hold plan assets of the foregoing by
reason of a plan's investment in such entity (each, a "Plan") or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and satisfies all the requirements of the Exemptions as
in effect at the time of such transfer or (2) is an insurance company general
account that is eligible for, and satisfies all of the requirements
G-3-3
for, exemptive relief under Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60. The Transferee will not transfer the
transferred certificate in violation of the foregoing.]
9. [For Class H, Class J, Class K, Class L, Class M, Class N, and Class O
Certificates.] [The Transferee either (A) is not an "employee benefit plan"
subject to Title I of ERISA or a "plan" described by Section 4975(e)(1) of the
Code, or any other retirement plan or other employee benefit plan or arrangement
subject to any federal, state or local law materially similar to the foregoing
provisions of ERISA and the Code, or any entity deemed to hold plan assets of
the foregoing by reason of a plan's investment in such entity (each, a "Plan")
or (B) is an insurance company general account which is eligible for, and
satisfies all of the requirements for, exemptive relief under Sections I and III
of Department of Labor Prohibited Transaction Class Exemption 95-60. The
Transferee will not transfer the transferred certificate in violation of the
foregoing.]
Very truly yours,
-------------------------------------------------
(Transferee)
By:
--------------------------------------------
Name:
------------------------------------
Title:
------------------------------------
G-3-4
EXHIBIT-H
FORM OF PROSPECTIVE TRANSFEREE CERTIFICATE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset Backed Securities Trust Services Group, Xxxxxxx Xxxxx Mortgage
Trust, Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the
transfer by _________________ (the "Transferor") to ____________________ (the
"Transferee") of the Class ___ Certificates (the "Transferred Certificate")'
having an initial [principal balance] [notional amount] as of July 11, 2002 (the
"Closing Date") of $____________ evidencing a ____% interest in the Classes to
which they belong. The Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of July 10, 2002 (the "Pooling and Servicing
Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor,
Wachovia Bank, National Association, as master servicer, Lend Lease Asset
Management, L.P., as special servicer, LaSalle Bank National Association, as
trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms used but not defined herein shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you that:
[For Class E, Class F, Class G, Class XC or Class XP
Certificates.] [The Transferee either (A) is not an "employee benefit plan"
subject to Title I of ERISA or a "plan" described by Section 4975(e)(1) of the
Code or any other retirement plan or other employee benefit plan or arrangement
subject to any federal, state or local law materially similar to the foregoing
provisions of ERISA and the Code, or any entity deemed to hold plan assets of
the foregoing by reason of a plan's investment in such entity (each, a "Plan")
or (B) (1) qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and satisfies all the requirements of the
Exemptions as in effect at the time of such transfer or (2) is an insurance
company general account that is eligible for, and satisfies all of the
requirements for, exemptive relief under Sections I and III of Department of
Labor Prohibited Transaction Class Exemption 95-60. The Transferee will not
transfer the transferred certificate in violation of the foregoing.]
[For Class H, Class J, Class K, Class L, Class M, Class N and
Class O Certificates.] [The Transferee either (A) is not an "employee benefit
plan" subject to Title I of ERISA or a "plan" described by Section 4975(e)(1) of
the Code, or any other retirement plan or
H-1
other employee benefit plan or arrangement subject to any federal, state or
local law materially similar to the foregoing provisions of ERISA and the Code,
or any entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") or (B) is an insurance company
general account which is eligible for, and satisfies all of the requirements
for, exemptive relief under Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60. The Transferee will not transfer the
transferred certificate in violation of the foregoing.]
[For Class R-I, Class R-II, Class Z-I or Class Z-II
Certificates.] [The Transferee is not an "employee benefit plan" subject to
Title I of ERISA or a "plan" described by Section 4975(e)(1) of the Code or any
other retirement plan or other employee benefit plan or arrangement subject to
any federal, state or local law materially similar to the foregoing provisions
of ERISA and the Code, or any entity deemed to hold plan assets of the foregoing
by reason of a plan's investment in such entity (each, a "Plan").]
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the date first written above.
-------------------------------------------------------
[Name of Transferee]
By:
-------------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
H-2
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(2)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK
[NAME OF OFFICER], being first duly sworn, deposes, and represents and
warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the
"Owner"), a corporation duly organized and existing under the laws of
the [State of ______] [the United States], and the owner of the Xxxxxxx
Xxxxx Mortgage Investors, Inc., Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1, Class [R-I] [R-II] evidencing a ___%
Percentage Interest in the Class to which its belongs (the "Class [R-I]
[R-II]"). Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Pooling and Servicing Agreement
dated as of July 10, 2002, among Xxxxxxx Xxxxx Mortgage Investors,
Inc., as Depositor, Wachovia Bank, National Association, as Master
Servicer, Lend Lease Asset Management, L.P., as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as fiscal agent.
2. That the Owner (i) is and will be a "Permitted Transferee"
as of _____________, and (ii) is acquiring the Class [R-I] [R-II]
Certificates for its own account or for the account of another Owner
from which it has received an affidavit in substantially the same form
as this affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization", a Plan or a Non-United States Person. For
this purpose, a "disqualified organization" means any of the following:
(i) the United States or a possession thereof, 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 of the FHLMC, a
majority of its board of directors is not selected by such governmental
unit), (ii) a foreign government, international organization, or any
agency or instrumentality of either of the foregoing, (iii) any
organization (except certain farmers' cooperatives described in Section
521 of the Internal Revenue Code of 1986, as amended (the "Code"))
which is exempt from the tax imposed by Chapter 1 of the Code (unless
such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code or (v) any
other Person so designated by the Trustee or Certificate Registrar
based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class [R-I] [RII] Certificate by such Person may cause
the Trust Fund or any Person having an Ownership Interest in any Class
of Certificates, other than such Person, to incur a liability
I-1-1
for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Class [R-I]
[R-II] 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.
A "Non-United States Person" is any Person other than
a United States Person. A "United States Person" is a citizen
or resident of the United States, a corporation or partnership
(including an entity treated as a corporation or partnership
for federal income tax purposes) created or organized in, or
under the laws of the United States, any State or the District
of Columbia unless, in the case of a partnership, Treasury
Regulations are adopted that provide otherwise, an estate
whose income is includable in gross income for United States
federal tax income purposes regardless of its source, or a
trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and
one or more United States Persons have the authority to
control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
3. That the Owner is aware (i) of the tax that would be
imposed on transfers of the Class [R-I] [R-II] Certificates to
disqualified organizations under the Code that applies to all transfers
of the Class [R-I] [R-II] Certificates after March 31, 1988; (ii) that
such tax would be on the transferor, or, if such transfer is through an
agent (which person includes a broker, nominee or middleman) for a
disqualified organization Transferee, on the agent; (iii) that the
person otherwise liable for the tax shall be relieved of liability for
the tax if the transferee furnishes to such person an affidavit that
the transferee is not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit
is false; and (iv) that the Class [R-I] [R-II] Certificates may be
"noneconomic residual interests" within the meaning of Treasury
regulation section 1.860E-l(c)(2) and that the transferor of a
"noneconomic residual interest" will remain liable for any taxes due
with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to
impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a
"pass-through entity" holding the Class [R-I] [R-II] Certificates if at
any time during the taxable year of the pass-through entity a
non-Permitted Transferee is the record holder of an interest in such
entity. For this purpose, a "pass through entity" includes a regulated
investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.
5. That the Owner is aware that the Certificate Registrar will
not register the transfer of any Class [R-I] [R-II] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee,
among other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any
such
I-1-2
transfer if it knows or believes that any of the representations
contained in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I]
[R-II] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is
__________________.
8. That the Owner has reviewed the restrictions set forth on
the face of the Class [R-I] [R-II] Certificates and the provisions of
Section 5.02 of the Pooling and Servicing Agreement under which the
Class [R-I] [R-II] Certificates were issued (and, in particular, the
Owner is aware that such Section authorizes the Trustee to deliver
payments to a person other than the Owner and negotiate a mandatory
sale by the Trustee in the event that the Owner holds such Certificate
in violation of Section 5.02); and that the Owner expressly agrees to
be bound by and to comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the
Class [R-I] [R-II] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner has historically paid its debts as they
have come due, intends to continue to pay its debts as they come due in
the future, and anticipates that it will, so long as it holds any of
the Class [R-I] [R-II] Certificates, have sufficient assets to pay any
taxes owed by the holder of such Class [R-I] [R-II] Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds
any of the Class [R-I] [R-II] Certificates.
12. That the Owner has no present knowledge or expectation
that it will be unable to pay any United States taxes owed by it so
long as any of the Certificates remain outstanding. In this regard, the
Owner hereby represents to and for the benefit of the Person from whom
it acquired the Class [R-I] [R-II] Certificates that the Owner intends
to pay taxes associated with holding the Class [R-I] [R-II]
Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class
[R-I] [R-II] Certificates.
13. That the Owner is not acquiring the Class [R-I] [R-II]
Certificates with the intent to transfer any of the Class [R-I] [R-II]
Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I] [R-II]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I] [R-II] Certificates remain
outstanding.
14. That the Owner will, in connection with any transfer that
it makes of the Class [R-I] [R-II] Certificates, obtain from its
transferee the representations required by Section 5.02(d) of the
Pooling and Servicing Agreement under which the Class [R-I]
I-1-3
[R-II] Certificates were issued and will not consummate any such
transfer if it knows, or knows facts that should lead it to believe,
that any such representations are false.
15. That the Owner will, in connection with any transfer that
it makes of any Class [R-I] [R-II] Certificate, deliver to the
Certificate Registrar an affidavit, which represents and warrants that
it is not transferring such Class [R-I] [R-II] Certificate to impede
the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of such Class [R-I]
[R-II] Certificate; (ii) may become insolvent or subject to a
bankruptcy proceeding, for so long as the Class [R-I] [R-II]
Certificates remain outstanding; and (iii) is not a "Permitted
Transferee".
16. [The Owner has computed any consideration paid to it to
acquire the Class [R-I] [R-II] Certificate in accordance with proposed
U.S. Treasury Regulations Sections 1.860E-1(a)(4)(iii) and
1.860E-1(c)(5) (or, after they, have been finalized, the final
regulations) by computing present values using a discount rate equal to
the applicable Federal Rate prescribed by Section 1274(d) of the Code,
compounded semiannually.]
[The Owner has computed any consideration paid to it
to acquire the Class [R-I] [R-II] Certificate in accordance
with the proposed U.S. Treasury Regulations Sections
1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present
values using a discount rate at least equal to the rate at
which the Owner regularly borrows, in the ordinary course of
its trade or business, substantial funds from unrelated third
parties. The Owner has provided all information necessary to
demonstrate to the transferor that it regularly borrows at
such rate.]
[The transfer of the Class [R-I] [R-II] Certificate
complies with Section 6 of Revenue Procedure 2001-12 (the
"Revenue Procedure"), 2001-3 I.R.B. 335 (January 16, 2001) (or
comparable provisions of applicable final U.S. Treasury
Regulations) and, accordingly,
(i) the Owner is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income
from Class [R-I] [R-II] Certificate will only be
taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Owner's two fiscal years preceding the year of the
transfer, the Owner had gross assets for financial
reporting purposes (excluding any obligation of a
person related to the Owner within the meaning of
Section 860L(g) of the Code) in excess of the $100
million and net assets in excess of $10 million;
(iii) the Owner will transfer the Class [R-I] [R-II]
Certificate only to another "eligible corporation,"
as defined in Section 860(a)(2) of the Code, in a
transaction that satisfies the requirements of
Section 4 of the Revenue Procedure;and
I-1-4
(iv) the Owner determined the consideration paid to it to
acquire the Class [R-I] [R-II] Certificate based on
reasonable market assumptions (including, but not
limited to, borrowing and investment rates,
prepayment and loss assumptions, expense and
reinvestment assumptions, tax rates and other factors
specific to the Owner) that it has determined in good
faith.]
[RESERVED]
IN WITNESS WHEREOF, the Owner has caused this instrument to be
executed on its behalf, by its [Title of Officer] and Authorized Signatory,
attested by its Assistant Secretary, this __ day of
[NAME OF OWNER]
By:
Name of Officer]
[Title of Officer]
----------------------------
[Assistant Secretary]
Personally appeared before me the above-named [Name of
Officer], known or proved to me to be the same person who executed the foregoing
instrument and to be [Title of Officer], and acknowledged to me that he executed
the same as his free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ________ day of ________,
______.
-------------------------------------------------
NOTARY PUBLIC
COUNTY OF
STATE OF
My Commission expires the
_____ day of ___________, _______.
I-1-5
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(4)
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS) -
Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2002-MW1, Class [R-I] [R-II], evidencing a _____% percentage
interest in the Class to which they belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ (the "Transferor") to _____________ (the "Transferee") of the
captioned Class [R-I] [R-II] Certificates (the "Class [R-I] [R-II]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of July 10, 2002, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Wachovia Bank, National
Association, as master servicer, Lend Lease Asset Management, L.P., as special
servicer, LaSalle Bank National Association, as trustee, and ABN AMRO Bank N.V.,
as fiscal agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferor hereby
represents and warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Class
[R-I] [R-II] Certificates by the Transferor to the Transferee is or will be
to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit I-1. The Transferor does not know or believe
that any representation contained therein is false.
3. The Transferor at the time of this transfer either (i) has
conducted a reasonable investigation of the financial condition of the
Transferee as contemplated by Treasury regulation section 1.860E-l(c)(4)(i)
and, as a result of that investigation, the Transferor has determined that
the Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future.
I-2-1
4. The Transferor understands that the transfer of the Class [R-I]
[R-II] Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the tests described above in
Paragraph 3(i) or 3(ii) have been met as to any transfer.
Very truly yours,
By:
-----------------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
I-2-2
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of July 10, 2002 relating to Xxxxxxx
Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2002-MW1 (the "Agreement"). Any term with initial capital letters not otherwise
defined in this notice has the meaning given such term in the Agreement.
Notice is hereby given that the Holders of Certificates
evidencing a majority of the Voting Rights allocated to the Controlling Class
have designated Lend Lease Asset Management, L.P. to serve as the Special
Servicer under the Agreement.
The designation of Lend Lease Asset Management, L.P. as
Special Servicer will become final if certain conditions are met and on the date
you will deliver to LaSalle Bank National Association, the trustee under the
Agreement (the "Trustee"), a written confirmation stating that the appointment
of the person designated to become the Special Servicer will not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates.
Please acknowledge receipt of this notice by signing the
enclosed copy of this notice where indicated below and returning it to the
Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION
By:
Title:
J-1-1
Receipt and acknowledged:
Standard & Poor's Rating Service Xxxxx'x Investors Service, Inc.
By: By:
Title: Title:
Date: Date:
X-0-0
XXXXXXX X-0
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx Mortgage Trust, Series 2002-MW1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing
Agreement dated as of July 10, 2002 relating to Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b) of the Agreement as if it were the
Special Servicer hereunder.
LEND LEASE ASSET MANAGEMENT, L.P.
-------------------------------------------------
By:
--------------------------------------------
Name:
------------------------------------
Title:
------------------------------------
J-2-1
EXHIBIT K
FORM OF CMSA PROPERTY FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT )
Cross Referenced as "P"
--------------------------------------- --------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
--------------------------------------- --------------------------------------------------------------------------------------------
Character Set ASCI
--------------------------------------- --------------------------------------------------------------------------------------------
Field Delineation Comma
--------------------------------------- --------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
--------------------------------------- --------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled )
--------------------------------------- --------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block )
--------------------------------------- --------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
--------------------------------------- --------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic S1, L1
--------------------------------------- --------------------------------------------------------------------------------------------
Loan ID 2 AN XXX9701A Unique Servicer Loan Number Assigned To Each S3, L3
Collateral Item In A Pool
--------------------------------------- --------------------------------------------------------------------------------------------
Prospectus Loan ID 3 AN 123 Unique Identification Number Assigned To Each S4, L4
Collateral Item In The Prospectus
--------------------------------------- --------------------------------------------------------------------------------------------
Property ID 4 AN 1001-001 Should contain Prospectus ID and property
identifier, e.g., 1001-001, 1000-002
--------------------------------------- --------------------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders L5
--------------------------------------- --------------------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 6 AN Text All Loans With The Same Value Are Xxxxxxx, X00
For example : "X02-1" would be populated in
this field for all related loans, "X02-2" would
be populated for the next group of related loans.
--------------------------------------- --------------------------------------------------------------------------------------------
Property Name 7 AN Text S55
--------------------------------------- --------------------------------------------------------------------------------------------
Property Address 8 AN Text S56
--------------------------------------- --------------------------------------------------------------------------------------------
Property City 9 AN Text S57
--------------------------------------- --------------------------------------------------------------------------------------------
Property State 10 AN FL S58
--------------------------------------- --------------------------------------------------------------------------------------------
Property Zip Code 11 AN 30303 S59
--------------------------------------- --------------------------------------------------------------------------------------------
Property County 12 AN Text S60
--------------------------------------- --------------------------------------------------------------------------------------------
Property Type Code 13 AN MF S61
--------------------------------------- --------------------------------------------------------------------------------------------
Year Built 14 AN YYYY S64
--------------------------------------- --------------------------------------------------------------------------------------------
Year Last Renovated 15 AN YYYY
--------------------------------------- --------------------------------------------------------------------------------------------
Net Square Feet At Contribution 16 Numeric 25000 RT, IN, WH, OF, MU, OT S62
--------------------------------------- --------------------------------------------------------------------------------------------
# Of Units/Beds/Rooms At Contribution 17 Numeric 75 MF, MH, LO,MU, HC, SS S63
--------------------------------------- --------------------------------------------------------------------------------------------
Property Status 00 XX 0 0xXXX, 0xXXX, 0xXxxxxxxx, 4=Partial Release,
5= Released, 6= Same as at Contribution
--------------------------------------- --------------------------------------------------------------------------------------------
Allocated Percentage of Loan at 19 Numeric 0.75 Issuer to allocate loan % attributable to
Contribution property for multi-property loans
--------------------------------------- --------------------------------------------------------------------------------------------
K-1
-------------------------------- ------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
-------------------------------- ------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
-------------------------------- ------------------------------------------------------------------------------------------------
-------------------------------- ------------------------------------------------------------------------------------------------
Current Allocated Percentage 20 Numeric 0.75 Maintained by servicer. If not supplied in
by Issuer or Underwriter, use Underwritting
NOI or NCF to calculate
-------------------------------- ------------------------------------------------------------------------------------------------
Current Allocated Ending 21 Numeric 5900900.00 Calculation based on Current Allocated L7
Percentage and Current Ending Scheduled
Scheduled Loan Amount Principal Balance (L7) for associated loan.
-------------------------------- ------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) 22 AN N Either Y=Yes, S=Subordinate, N= No ground S74
lease
-------------------------------- ------------------------------------------------------------------------------------------------
Total Reserve Balance 23 Numeric 25000.00 For Maintenance, Repairs, & Environmental. S77
(Excludes Tax & Insurance Escrows). An amount
should be printed if the value in Setup File
field 77 is "Y"
-------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD L74
-------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 25 Numeric 1000000.00 L75
-------------------------------- ------------------------------------------------------------------------------------------------
Date Asset Expected to Be 26 AN YYYYMMDD Could be different dates for different L79
Resolved or Foreclosed properties. If in Foreclosure - Expected
Date of Foreclosure and if REO - Expected
Sale Date.
-------------------------------- ------------------------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD L42
-------------------------------- ------------------------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD L43
-------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 29 Numeric 0.75 L71
-------------------------------- ------------------------------------------------------------------------------------------------
Occupancy As of Date 30 AN YYYYMMDD Typically should be the effective date of
the Rent Roll
-------------------------------- ------------------------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD Roll over review to be completed every
12 months
-------------------------------- ------------------------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
-------------------------------- ------------------------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
-------------------------------- ------------------------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
-------------------------------- ------------------------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
-------------------------------- ------------------------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.2 Apply to Property Types - RT, IN, WH, OF, MU, OT S62
-------------------------------- ------------------------------------------------------------------------------------------------
Largest Tenant 37 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
-------------------------------- ------------------------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
-------------------------------- ------------------------------------------------------------------------------------------------
2nd Largest Tenant 39 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
-------------------------------- ------------------------------------------------------------------------------------------------
Square Feet of 2nd Largest 40 Numeric 15000
Tenant
-------------------------------- ------------------------------------------------------------------------------------------------
3rd Largest Tenant 41 AN Text For Office, WH, Retail, Industrial, Other or
Mixed Use, as applicable
-------------------------------- ------------------------------------------------------------------------------------------------
Square Feet of 3rd Largest 42 Numeric 15000
Tenant
-------------------------------- ------------------------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric MM Needed to indicate month ending for borrower's
Fiscal Year. For example : "12"
-------------------------------- ------------------------------------------------------------------------------------------------
Contribution Financials As Of 44 AN YYYYMMDD S72
Date
-------------------------------- ------------------------------------------------------------------------------------------------
Revenue At Contribution 45 Numeric 1000000.00 Should match the prospectus if available. At S70
the Property Level
-------------------------------- ------------------------------------------------------------------------------------------------
Operating Expenses At 46 Numeric 1000000.00 Should match the prospectus if available. At S71
the Property Level
Contribution
-------------------------------- ------------------------------------------------------------------------------------------------
NOI At Contribution 47 Numeric 1000000.00 Should match the prospectus if available. At S65
the Property Level
-------------------------------- -------------------------------------------------------------------------------------------------
DSCR (NOI) At Contribution 48 Numeric 1.5 Should match the prospectus if available. S66
-------------------------------- -------------------------------------------------------------------------------------------------
Appraisal Value At Contribution 49 Numeric 1000000.00 S67
-------------------------------- -------------------------------------------------------------------------------------------------
Appraisal Date At Contribution 50 AN YYYYMMDD S68
-------------------------------- -------------------------------------------------------------------------------------------------
Physical Occupancy At 51 Numeric 0.9 S69
Contribution
-------------------------------- -------------------------------------------------------------------------------------------------
Date of Last Inspection 52 AN YYYYMMDD Date of last physical site inspection
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial 53 AN YYYYMMDD L58
As of Date
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00 L52
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating 55 Numeric 1000000.00 L53
Expenses
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 56 Numeric 1000000.00 L54
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service 57 Numeric 1000000.00 Calculate using P20(percentage) to get the X00
Xxxxxx allocated amount for each property
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.3 Uses the property NOI and the allocated L56
debt service amount
-------------------------------- -------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical 59 Numeric 0.9 X00
Xxxxxxxxx
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding FY Financial 60 AN YYYYMMDD L65
As of Date
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 61 Numeric 1000000.00 L59
Revenue
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding FY Operating 62 Numeric 1000000.00 L60
Expenses
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00 L61
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding FY Debt Service 64 Numeric 1000000.00 Calculate using P20(percentage) to get the X00
Xxxxxx allocated amount for each property
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 65 Numeric 1.3 Uses the property NOI and the allocated L63
DSCR (NOI) debt service amount
-------------------------------- -------------------------------------------------------------------------------------------------
Second Preceding FY Physical 66 Numeric 0.9 X00
Xxxxxxxxx
-------------------------------- -------------------------------------------------------------------------------------------------
Property Contribution Date 67 AN YYYYMMDD Date Property was contributed L85
-------------------------------- -------------------------------------------------------------------------------------------------
Most Recent Revenue 68 Numeric 1000000.00 Most Recent Revenue L66
-------------------------------- -------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 69 Numeric 1000000.00 Most Recent Operating Expenses L67
-------------------------------- -------------------------------------------------------------------------------------------------
Most Recent NOI 70 Numeric 1000000.00 Most Recent Net Operating Income L68
-------------------------------- -------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 71 Numeric 1000000.00 Calculate using P20(percentage) to get the L69
allocated amount for each property
-------------------------------- -------------------------------------------------------------------------------------------------
K-2
-------------------------------- ------------------------------------------------------------------------------------------------
FIELD FORMAT LOAN FIELD
-------------------------------- ------------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
-------------------------------- ------------------------------------------------------------------------------------------------
-------------------------------- ------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 72 Numeric 2.55 Uses the property NOI and the allocated L70
debt service amount
--------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Financial 73 AN YYYYMMDD Start date used to calculate Most Recent L72
As of Start Date information either YTD or trailing 12 months
--------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Financial 74 AN YYYYMMDD End date used to calculate Most Recent L73
As of End Date information either YTD or trailing 12 months
--------------------------------- ------------------------------------------------------------------------------------------------
Most Recent Financial 75 AN T or Y T= Trailing 12 months Y = Year to Date L82
Indicator
--------------------------------- ------------------------------------------------------------------------------------------------
NCF At Contribution 76 Numeric 1000000.00 Net Cash Flow At Contribution. Should match S83
the prospectus if available.
--------------------------------- ------------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution 77 Numeric 1.5 DSCR At Contribution using NCF to calculate. S84
Should match the prospectus if available.
--------------------------------- ------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 78 Numeric 1000000.00 Preceding Fiscal Year Net Cash Flow related L92
to Financial As of Date P53.
--------------------------------- ------------------------------------------------------------------------------------------------
Preceding Fiscal Year 79 Numeric 2.55 Preceding Fiscal Yr Debt Service Coverage L93
DSCR (NCF) Ratio using NCF related to Financial As of
Date P53.
--------------------------------- ------------------------------------------------------------------------------------------------
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash L94
Flow related to Financial As of Date P60.
--------------------------------- ------------------------------------------------------------------------------------------------
Second Preceding FY 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service L95
DSCR (NCF) Coverage Ratio using Net Cash Flow related
to Financial As of Date P60.
--------------------------------- ------------------------------------------------------------------------------------------------
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related L96
to Financial As of Date P74.
--------------------------------- ------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio L97
using Net Cash Flow related to Financial
As of Date P74.
--------------------------------- ------------------------------------------------------------------------------------------------
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was L90
calculated should be the same for each financial
period. See NOI/NCF Indicator Legend.
--------------------------------- ------------------------------------------------------------------------------------------------
Deferred Maintenance Flag 85 AN N Either Y=Yes or N= No, Deferred Maintenance
--------------------------------- ------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
PROPERTY TYPES CODE NOI/NCF INDICATOR
----------------------------------------------------- ----------------------------------------------------------------------------
LEGEND LEGEND
----------------------------------------------------- ----------------------------------------------------------------------------
MF Multifamily CMSA Calculated using CMSA standard
----------------------------------------------------- ----------------------------------------------------------------------------
RT Retail PSA Calculated using a definition given in the PSA
----------------------------------------------------- ----------------------------------------------------------------------------
HC Health Care U/W Calculated using the underwriting method
----------------------------------------------------- ----------------------------------------------------------------------------
IN Industrial
-----------------------------------------------------
WH Warehouse
-----------------------------------------------------
MH Mobile Home Park
-----------------------------------------------------
OF Office
-----------------------------------------------------
MU Mixed Use
-----------------------------------------------------
LO Lodging
-----------------------------------------------------
SS Self Storage
-----------------------------------------------------
OT Other
-----------------------------------------------------
SE Securities
-----------------------------------------------------
K-3
EXHIBIT L
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
COMPARATIVE FINANCIAL STATUS REPORT
AS OF _____________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI____ or NCF______
-------------------------------------------------------------------------------------------------------
X0 X0 X00 X00 X00 X0 X00 X00 X00 X00 X00 OR P48 OR
P76 P77
-------------------------------------------------------------------------------------------------------
ORIGINAL UNDERWRITING
-------------------------------------------------------------------------------------------------------
INFORMATION
-------------------------------------------------------------------------------------------------------
BASE YEAR
-------------------------------------------------------------------------------------------------------
Last Current Allocated
Property Allocated Paid Annual Financial
Property Inspection Loan Thru Debt Info as % Total $
ID City State Date Amount Date Service of Date Occ Revenue NOI/NCF (1) DSCR
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Yyyymmdd yyyymmdd
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
List all properties currently in deal with or without information
largest to smallest loan
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
This report should reflect the information provided in the CMSA Property File
and CMSA Loan Periodic Update File.
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
Total: $ $ ** WA $ $ WA
-------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
P60 P66 P61 P63 OR P80 P65 OR X00 X00 X00 X00 XX X00 X00 XX
X00 X00
--------------------------------------------------------------------------------------
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
--------------------------------------------------------------------------------------
INFORMATION INFORMATION
--------------------------------------------------------------------------------------
AS OF NORMALIZED AS OF NORMALIZED
----- -----
--------------------------------------------------------------------------------------
Financial Financial
Info as % Total $ (1) Info as % Total $ (1)
of Date Occ Revenue NOI/NCF DSCR of Date Occ Revenue NOI/NCF DSCR
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
yyyymmdd yyyymmdd
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
WA $ $ WA WA $ $ WA
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
X00 X00 X00 X00 X00 X00 OR P72 OR (2)
X00 X00
--------------------------------------------------------------------------------
MOST RECENT FINANCIAL NET CHANGE
--------------------------------------------------------------------------------
INFORMATION
--------------------------------------------------------------------------------
*NORMALIZED OR ACTUAL PRECEDING &
BASIS
--------------------------------------------------------------------------------
%
FS Start FS End Occ As of % Total $ (1) % Total (1)
Date Date Date Occ Revenue NOI/NCF DSCR Occ Revenue DSCR
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
yyyymmdd yyyymmdd yyyymmdd
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
WA $ $ WA WA $ WA
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
---------------------
(1) DSCR should match to Operating Statement Analysis Report and is normally
calculated using NOI or NCF / Debt Service times the allocated loan percentage.
(2) Net change should compare the latest year to the Base Year.
* As required by Trust Agreements.
** Weighted Averages should be computed and reflected if the data is relevant
and applicable.
L-1
EXHIBIT M
FORM OF REO STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
REO STATUS REPORT
AS OF ______________
(PROPERTY LEVEL REPORT)
Operating Information Reflected As NOI______ or XXX_______
X00 XX
X0 X0 X00 X0 X00 X00 X0 P21 L37 L39 L38 L25 L11
------------------------------------------------------------------------------------------------------------------------------------
(a) (b) (c) (d) (e)=a+b+c+d
------------------------------------------------------------------------------------------------------------------------------------
ALLOCATED
ENDING OTHER TOTAL
SQ FT PAID SCHEDULED TOTAL P&I EXPENSE T&I CURRENT
PROPERTY PROPERTY PROPERTY OR THRU LOAN ADVANCES ADVANCE ADVANCE TOTAL MONTHLY MATURITY
ID NAME TYPE CITY STATE UNITS DATE AMOUNT OUTSTANDING OUTSTANDING OUTSTANDING EXPOSURE P&I DATE
------------------------------------------------------------------------------------------------------------------------------------
P58 OR
P53 OR P72/P79 OR
X00 X00 X00 X00 X00 X00 X00 X00
------------------------------------------------------------------------------------------------------------------------------------
(f) (g) (h)=(.90*g)- e
------------------------------------------------------------------------------------------------------------------------------------
APPRAISAL
BPO OR APPRAISAL LOSS TOTAL DATE ASSET
LTM LTM INTERNAL BPO OR USING 90% APPRAISAL REO EXPECTED
NOI/NCF DSCR VALUATION VALUE INTERNAL APPR. OR REDUCTION TRANSFER ACQUISITION TO BE
DATE (NOI/NCF) DATE SOURCE (1) VALUE BPO (F) REALIZED DATE DATE RESOLVED COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
----------------------
REO's data reflected at the property level for relationships with more than one
(1) property should use the Allocated Ending Scheduled Loan Amount, and prorate
all advances and expenses or other loan level data as appropriate.
(1) Use the following codes; App. - Appraisal, BPO - Brokers Opinion, Int -
Internal Value.
M-1
EXHIBIT N
FORM OF WATCH LIST
CMSA INVESTOR REPORTING PACKAGE
SERVICER WATCH LIST
AS OF ____________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI______ or NCF________
S4 S55 S61 S57 S58 L7 L8 L11 L56/L93 L70/L97
------- -------- --------- ---- ----- ------------ ---- -------- --------- --------- --------------
PRECEDING MOST
ENDING PAID FISCAL YR RECENT
PROSPECTUS PROPERTY PROPERTY SCHEDULED THRU MATURITY DSCR NOI/ DSCR NOI/ COMMENT/ACTION
LOAN ID NAME TYPE CITY STATE LOAN BALANCE DATE DATE NCF NCF TO BE TAKEN
------- -------- --------- ---- ----- ------------ ---- -------- --------- --------- --------------
List all loans on watch list in descending balance order.
Comment section should include reason and other pertinent information.
Should not include loans that are specially serviced.
WATCH LIST SELECTION CRITERIA SHOULD BE FOOTNOTED ON THE REPORT. THE CRITERIA
MAY BE DICTATED AS PER THE PSA OR THE SERVICER'S INTERNAL POLICY.
Total: $
N-1
EXHIBIT O
FORM OF DELINQUENT LOAN STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
(LOAN LEVEL REPORT)
Operating Information Reflected As NOI______ or NCF________
S62 or
S4 S55 S61 S57 S58 S63 L8 L7 L37 L39 L38 L25
------------------------------------------------------------------------------------------------------------------------------------
Ending Total Other Total
Loan Sq Ft Paid Scheduled P&I Expense T & I Current
Prospectus Property Property or Thru Loan Advances Advance Advances Total Monthly
ID Name Type City State Units Date Balance Outstanding Outstanding Outstanding Exposure P&I
------------------------------------------------------------------------------------------------------------------------------------
LOANS IN FORECLOSURE AND NOT REO
90 + DAYS DELINQUENT
60 TO 89 DAYS DELINQUENT
30 TO 59 DAYS DELINQUENT
CURRENT AND AT SPECIAL SERVICER
L58 L54 or L56 or
or L68/L92 L70/L93
L10 L11 L73 or L96 or L97 L74 L75 L99 L77 L79 L76
------------------------------------------------------------------------------------------------------------------------------------
LTM LTM Appraisal Loss Total Date Asset
Current NOI/ LTM DSCR BPO or using 90% Appraisal Expected to
Interest Maturity NCF NOI/ (NOI/ Valuation Internal Appr. or Reduction Transfer be Resolved Workout
Rate Date Date NCF NCF) Date Value** BPO (f) Realized Date or Foreclosed Strategy* Comments
------------------------------------------------------------------------------------------------------------------------------------
----------------------
FCL = Foreclosure
LTM = Latest 12 Months either Last Normalized Annual, Normalized YTD or Trailing
12 months, if available.
*Workout Strategy should match the CMSA Loan Periodic
Update File using abbreviated words in place of a code number such as (FCL - In
Foreclosure, MOD - Modification, DPO - Discount Payoff,
NS - Note Sale, BK - Bankruptcy, PP - Payment Plan, TBD - To be determined
etc...). It is possible to combine the status codes if the loan is going in more
than one direction (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO).
**BPO - Broker opinion
O-1
EXHIBIT P
FORM OF HISTORICAL LOAN MODIFICATION REPORT
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LOAN MODIFICATION REPORT
AS OF ____________
(LOAN LEVEL REPORT)
S4 S57 S58 L49 L48 L7* L7* L50*
------------------------------------------------------------------------------------------------------------------------------------
BALANCE BALANCE
EXTENSION WHEN AT THE # MTHS
MOD / PER DOCS EFFECTIVE SENT TO EFFECTIVE FOR
PROSPECTUS EXTENSION OR DATE OF SPECIAL DATE OF OLD RATE
ID CITY STATE FLAG SERVICER MODIFICATION SERVICER MODIFICATION RATE CHANGE
------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
Information is as of modification. Each line should not change in the future. Only new modifications should be added.
------------------------------------------------------------------------------------------------------------------------------------
Total For All Loans:
L50* L25* L25* L11* L11* L47
------------------------------------------------------------------------------------------------------------------------------------
TOTAL # (1)
MTHS FOR REALIZED (2) EST. FUTURE
NEW CHANGE LOSS TO INTEREST LOSS TO TRUST
NEW RATE OLD P&I NEW P&I OLD MATURITY MATURITY OF MOD TRUST $ $ (RATE REDUCTION) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should
not change on this report once assigned. Future modifications done on the same
loan are additions to the report.
(1) Actual principal loss taken by bonds
(2) Expected future loss due to a rate reduction. This is just an estimate
calculated at the time of the modification.
P-1
EXHIBIT Q
FORM OF HISTORICAL LIQUIDATION REPORT
CMSA INVESTOR REPORTING PACKAGE
HISTORICAL LIQUIDATION REPORT
(REO-SOLD, DISCOUNTED PAYOFF OR NOTE SALE)
AS OF ____________
(LOAN LEVEL REPORT)
S4 S55 S61 S57 S58 L75 L29 L45 L7 L37
(c) = b/a (a) (b) (d) (e) (f)
------------------------------------------------------------------------------------------------------------------------------------
LATEST NET AMT TOTAL
% RECEIVED APPRAISAL OR EFFECTIVE RECEIVED ENDING P&I
PROSPECTUS PROPERTY PROPERTY CITY STATE FROM BROKERS DATE OF SALES FROM SCHEDULED ADVANCE
LOAN ID NAME TYPE LIQUIDATION OPINION LIQUIDATION PRICE SALE BALANCE OUTSTANDING
------------------------------------------------------------------------------------------------------------------------------------
THIS REPORT IS HISTORICAL
All information is from the liquidation date and does not need to be updated.
------------------------------------------------------------------------------------------------------------------------------------
TOTAL ALL LOANS:
CURRENT MONTH ONLY:
------------------------------------------------------------------------------------------------------------------------------------
L39+L38 L47
(g) (h) (i)=d - (f+g+h) (k) (m) (n)=k+m (o)=n/e
------------------------------------------------------------------------------------------------------------------------------------
TOTAL T & I DATE DATE OF LOSS
AND OTHER LOSS MINOR ADJ TOTAL % OF
EXPENSE ADVANCE SERVICING NET REALIZED PASSED MINOR ADJ PASSED LOSS WITH SCHEDULED
OUTSTANDING FEES EXPENSE PROCEEDS LOSS THRU TO TRUST THRU ADJUSTMENT BALANCE
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(h) Servicing Fee Expense includes fees such as Liquidation or Disposition fees
charged by the Special Servicer.
Q-1
EXHIBIT R
FORM OF NOI ADJUSTMENT WORKSHEET
COMMERCIAL NOI ADJUSTMENT WORKSHEET
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
------------------
------------------
Prospectus ID
------------------ ---------------- -------------------
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan Amount %
Date
----------------------------------------------------------
Property Name
----------------------------------------------------------
Property Type
----------------------------------------------------------
Property Address, City, State
----------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sq ft. ,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. Etc. specify annual/per unit...
(1)
------------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
====================================================================================================================================
INCOME: YYYY NOTES
------------------ ---------------- -------------------
------------------ ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
Statement Classification ACTUAL
------------------ ---------------- -------------------
Gross Potential Rent (2)
------------------ ---------------- -------------------
Less: Vacancy Loss
------------------ ---------------- -------------------
OR
------------------ ---------------- -------------------
Base Rent (2)
------------------ ---------------- -------------------
Expense Reimbursement
------------------ ---------------- -------------------
Percentage Rent
------------------ ---------------- -------------------
Parking Income
------------------ ---------------- -------------------
Other Income
------------------ ---------------- -------------------
------------------ ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------ ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
------------------ ---------------- -------------------
Real Estate Taxes
------------------ ---------------- -------------------
Property Insurance
------------------ ---------------- -------------------
Utilities
------------------ ---------------- -------------------
Repairs and Maintenance
------------------ ---------------- -------------------
Janitorial
------------------ ---------------- -------------------
Management Fees
------------------ ---------------- -------------------
Payroll & Benefits Expense
------------------ ---------------- -------------------
Advertising & Marketing
------------------ ---------------- -------------------
Professional Fees
------------------ ---------------- -------------------
General and Administrative
------------------ ---------------- -------------------
Other Expenses For self-storage include
franchise fees
------------------ ---------------- -------------------
Ground Rent
------------------ ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------ ---------------- -------------------
------------------ -------------------
OPERATING EXPENSE RATIO
------------------ -------------------
------------------ -------------------
NET OPERATING INCOME
------------------ -------------------
------------------ -------------------
Leasing Commissions (3)
------------------ ---------------- -------------------
Tenant Improvements (3)
------------------ ---------------- -------------------
Capital Expenditures
------------------ ---------------- -------------------
Extraordinary Capital Expenditures
------------------ ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------------------------------------------------------------------------------
(3) Actual current yr, but normalize for annual if possible via contractual,
U/W or other data
------------------------------------------------------------------------------------------
------------------ -------------------
NET CASH FLOW
------------------ -------------------
------------------ -------------------
DEBT SERVICE (PER SERVICER)
------------------ -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------ -------------------
------------------ -------------------
DSCR: (NOI/DEBT SERVICE)
------------------ -------------------
R-1
------------------ -------------------
------------------ -------------------
DSCR: (NCF/DEBT SERVICE)
------------------ -------------------
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
------------------------------------------------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return,
other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted. The "Normalized" column and corresponding comments should roll through to the
Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
R-2
MULTIFAMILY NOI ADJUSTMENT WORKSHEET
(includes Mobile Home Parks)
AS OF MM/DD/YY
=================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan Amount %
Date
---------------------------------------------------------
Property Name
---------------------------------------------------------
Property Type
---------------------------------------------------------
Property Address, City, State
---------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sq ft., units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per unit...
(1)
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Gross Potential Rent (2) Include Pad/RV rent
------------------- ---------------- -------------------
Less: Vacancy Loss
------------------- ---------------- -------------------
OR
------------------- ---------------- -------------------
Base Rent (2)
------------------- ---------------- -------------------
Laundry/Vending Income
------------------- ---------------- -------------------
Parking Income
------------------- ---------------- -------------------
Other Income Include forfeited
security/late fees/pet
------------------- ---------------- -------------------
` ------------------- ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------- ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $ amt for
Vacancy Loss
OPERATING EXPENSES:
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits Expense
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------- ---------------- -------------------
------------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
------------------- -------------------
NET OPERATING INCOME
------------------- -------------------
------------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- -------------------
------------------- -------------------
NET CASH FLOW
------------------- -------------------
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------- -------------------
------------------- -------------------
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS:This report should be completed annually for "Normalization" of Borrower's numbers.Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted.The "Normalized" column and corresponding comments should roll through to the
Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
R-3
LODGING NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
=================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan Amount %
Date
---------------------------------------------------------
Property Name
---------------------------------------------------------
Property Type
---------------------------------------------------------
Property Address, City, State
---------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per unit...
(1)
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Room Revenue
------------------- ---------------- -------------------
Food & Beverage Revenues
------------------- ---------------- -------------------
Telephone Revenue
------------------- ---------------- -------------------
Other Departmental Revenue
------------------- ---------------- -------------------
Other Income
------------------- ---------------- -------------------
------------------- ---------------- -------------------
DEPARTMENTAL REVENUE: (2)
------------------- ---------------- -------------------
(2) Report Departmental Revenue as EGI for CMSA Loan Periodic and Property files
OPERATING EXPENSES:
------------------- ---------------- -------------------
DEPARTMENTAL
------------------- ---------------- -------------------
Room
------------------- ---------------- -------------------
Food & Beverage
------------------- ---------------- -------------------
Telephone Expenses
------------------- ---------------- -------------------
Other Dept. Expenses
------------------- ---------------- -------------------
DEPARTMENTAL EXPENSES:
------------------- ---------------- -------------------
------------------- ---------------- -------------------
DEPARTMENTAL INCOME:
------------------- ---------------- -------------------
------------------- ---------------- -------------------
GENERAL/UNALLOCATED
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Franchise Fee
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL GENERAL/UNALLOCATED
(For CMSA files, Total Expenses = Dept.
Exp + General Exp.)
------------------- -------------------
------------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
------------------- -------------------
(=Departmental Revenue/(Dept. Exp. +
General Exp.))
------------------- -------------------
------------------- -------------------
NET OPERATING INCOME
------------------- -------------------
------------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- -------------------
------------------- -------------------
NET CASH FLOW
------------------- -------------------
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------- -------------------
------------------------------------------------------------
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS:This report should be completed annually for "Normalization" of Borrower's numbers. Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted.The "Normalized" column and corresponding comments should roll through to the
Operating Statement Analysis Report.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
R-4
HEALTHCARE NOI ADJUSTMENT WORKSHEET
AS OF MM/DD/YY
=================================================================================================================================
PROPERTY OVERVIEW
------------------
Prospectus ID
------------------ ---------------- -------------------
Current Scheduled Loan Balance/Paid to Current Allocated Loan Amount %
Date
---------------------------------------------------------
Property Name
---------------------------------------------------------
Property Type
---------------------------------------------------------
Property Address, City, State
---------------------------------------------------------
Net Rentable SF/Units/Pads, Beds Use second box to specify sqft.,units...
------------------ ----------------
Year Built/Year Renovated
------------------ ----------------
Cap Ex Reserve (annually)/per Unit. etc. specify annual/per unit...
(1)
------------------ ----------------
Year of Operations
------------------
Occupancy Rate (physical)
------------------
Occupancy Date
------------------
Average Rental Rate
------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME: YYYY NOTES
------------------- ---------------- -------------------
BORROWER ADJUSTMENT NORMALIZED
ACTUAL
------------------- ---------------- -------------------
Statement Classification
------------------- ---------------- -------------------
Gross Potential Rent (2)
------------------- ---------------- -------------------
Less: Vacancy Loss
------------------- ---------------- -------------------
OR
------------------- ---------------- -------------------
Private Pay (2)
------------------- ---------------- -------------------
Medicare/Medicaid
------------------- ---------------- -------------------
Nursing/Medical Income
------------------- ---------------- -------------------
Meals Income
------------------- ---------------- -------------------
Other Income
------------------- ---------------- -------------------
------------------- ---------------- -------------------
EFFECTIVE GROSS INCOME
------------------- ---------------- -------------------
(2) Use either Gross Potential (with Vacancy Loss) or Private
Pay/Medicare/Medicaid; use negative $amt for Vacancy Loss
OPERATING EXPENSES:
------------------- ---------------- -------------------
Real Estate Taxes
------------------- ---------------- -------------------
Property Insurance
------------------- ---------------- -------------------
Utilities
------------------- ---------------- -------------------
Repairs and Maintenance
------------------- ---------------- -------------------
Management Fees
------------------- ---------------- -------------------
Payroll & Benefits
------------------- ---------------- -------------------
Advertising & Marketing
------------------- ---------------- -------------------
Professional Fees
------------------- ---------------- -------------------
General and Administrative
------------------- ---------------- -------------------
Room expense - housekeeping
------------------- ---------------- -------------------
Meal expense
------------------- ---------------- -------------------
Other Expenses
------------------- ---------------- -------------------
Ground Rent
------------------- ---------------- -------------------
TOTAL OPERATING EXPENSES
------------------- -------------------
------------------- -------------------
OPERATING EXPENSE RATIO
------------------- -------------------
------------------- -------------------
NET OPERATING INCOME
------------------- -------------------
------------------- ---------------- -------------------
Capital Expenditures
------------------- ---------------- -------------------
Extraordinary Capital Expenditures
------------------- ---------------- -------------------
TOTAL CAPITAL ITEMS
------------------- ---------------- -------------------
------------------- -------------------
NET CASH FLOW
------------------- -------------------
------------------- -------------------
DEBT SERVICE (PER SERVICER)
------------------- -------------------
NET CASH FLOW AFTER DEBT SERVICE
------------------- -------------------
------------------- -------------------
DSCR: (NOI/DEBT SERVICE)
------------------- -------------------
------------------- -------------------
DSCR: (NCF/DEBT SERVICE)
------------------- -------------------
------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------
(i.e.. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS:This report should be completed annually for "Normalization" of Borrower's numbers.Methodology used is per
MBA/CMSA Standard Methodology unless otherwise noted.The "Normalized" column and corresponding comments should roll through to the
Operating Statement Analysis Report
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
R-5
EXHIBIT S
FORM OF OPERATING STATEMENT ANALYSIS REPORT
COMMERCIAL OPERATING STATEMENT ANALYSIS REPORT
(includes Retail/Office/Industrial/Warehouse/Mixed Use/Self Storage)
AS OF MM/DD/YY
===================================================================================================================================
PROPERTY OVERVIEW
-----------
PROSPECTUS ID
----------- ----------- -----------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
----------------------------------------------------------------------------------------------
Property Name
----------------------------------------------------------------------------------------------
Property Type
----------------------------------------------------------------------------------------------
Property Address, City, State
--------------------------------------------------
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
-----------------------
Year Built/Year Renovated
-----------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
----------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
----------------------------------------------------------------
Occupancy Rate (physical)
----------------------------------------------------------------
Occupancy Date
----------------------------------------------------------------
Average Rental Rate
----------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents, excl. Leasing
Commission and TI's
===================================================================================================================================
INCOME:
-----------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
----------------------------------------------------------------------------------------------
Period Ended PRECEDING YR.
UNDERWRITING 3RD 2ND (fm NOI Adj TTM/YTD (2) YYYY-U/W YYYY-YYYY
Statement Classification (yr) BASE LINE PRECEDING PRECEDING Sheet) AS OF// XX VARIANCE VARIANCE
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
----------------------------------------------------------------------------------------------
Base Rent (3)
----------------------------------------------------------------------------------------------
Expense Reimbursement
----------------------------------------------------------------------------------------------
Percentage Rent
----------------------------------------------------------------------------------------------
Parking Income
----------------------------------------------------------------------------------------------
Other Income
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for
Vacancy Loss
OPERATING EXPENSES:
----------------------------------------------------------------------------------------------
Real Estate Taxes
----------------------------------------------------------------------------------------------
Property Insurance
----------------------------------------------------------------------------------------------
Utilities
----------------------------------------------------------------------------------------------
Repairs and Maintenance
----------------------------------------------------------------------------------------------
Janitorial
----------------------------------------------------------------------------------------------
Management Fees
----------------------------------------------------------------------------------------------
Payroll & Benefits
----------------------------------------------------------------------------------------------
Advertising & Marketing
----------------------------------------------------------------------------------------------
Professional Fees
----------------------------------------------------------------------------------------------
General and Administrative
----------------------------------------------------------------------------------------------
Other Expenses
----------------------------------------------------------------------------------------------
Ground Rent
----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Leasing Commissions
----------------------------------------------------------------------------------------------
Tenant Improvements
----------------------------------------------------------------------------------------------
Capital Expenditures
----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
*NET CASH FLOW
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
----------------------------------------------------------------------------------------------
--------------------------------------------------
SOURCE OF FINANCIAL DATA:
--------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
-----------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS:Years above will roll, always showing a 3yr sequential history.Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report.Year-over-year variances (either higher or lower) must be
explained and noted for the following: greater than 10% DSCR CHANGE, greater than 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL
ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
S-1
MULTIFAMILY OPERATING STATEMENT ANALYSIS REPORT
(includes Mobile Home Parks)
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
---------------
PROSPECTUS ID
-------------------------------------------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
--------------------------------------------------------------------------------------
Property Name
-----------------------------
Property Type
--------------------------------------------------------------------------------------
Property Address, City, State
--------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds Use second box to specify sq ft.,units...
-----------------------------
Year Built/Year Renovated
-----------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
-----------------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
-----------------------------------------------------------------------
Occupancy Rate (physical)
-----------------------------------------------------------------------
Occupancy Date
-----------------------------------------------------------------------
Average Rental Rate
-----------------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents.
====================================================================================================================================
INCOME
--------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
----------------------------------------------------------------------------------------------
Period Ended PRECEDING YR.
UNDERWRITING 3RD 2ND (fm NOI Adj TTM/YTD (2) YYYY-U/W YYYY-YYYY
Statement Classification (yr) BASE LINE PRECEDING PRECEDING Sheet) AS OF// VARIANCE VARIANCE
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
----------------------------------------------------------------------------------------------
Less: Vacancy Loss
----------------------------------------------------------------------------------------------
OR
-----------------------------------------------------------------------------------------------
Base Rent (3)
-----------------------------------------------------------------------------------------------
Laundry/Vending Income
-----------------------------------------------------------------------------------------------
Parking Income
-----------------------------------------------------------------------------------------------
Other Income
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
-----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Base Rents; use negative $amt for Vacancy
Loss
OPERATING EXPENSES:
-----------------------------------------------------------------------------------------------
Real Estate Taxes
-----------------------------------------------------------------------------------------------
Property Insurance
-----------------------------------------------------------------------------------------------
Utilities
-----------------------------------------------------------------------------------------------
Repairs and Maintenance
-----------------------------------------------------------------------------------------------
Management Fees
-----------------------------------------------------------------------------------------------
Payroll & Benefits
-----------------------------------------------------------------------------------------------
Advertising & Marketing
-----------------------------------------------------------------------------------------------
Professional Fees
-----------------------------------------------------------------------------------------------
General and Administrative
-----------------------------------------------------------------------------------------------
Other Expenses
-----------------------------------------------------------------------------------------------
Ground Rent
-----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Capital Expenditures
-----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
-----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*NET CASH FLOW
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
-----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
-----------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history.Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report.Year-over-year variances (either higher or lower) must be
explained and noted for the following: greater than 10% DSCR CHANGE, greater than 15% EGI/TOTAL OPERATING EXPENSES OR TOTAL CAPITAL
ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
S-2
LODGING OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
-------------
PROSPECTUS ID
---------------------------------------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
---------------------------------------------------------------------------------------------
Property Name
---------------------------------------------------------------------------------------------
Property Type
---------------------------------------------------------------------------------------------
Property Address, City, State
--------------------------
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
--------------------------
Year Built/Year Renovated
--------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
------------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
------------------------------------------------------------------
Occupancy Rate (physical)
------------------------------------------------------------------
Occupancy Date
------------------------------------------------------------------
Average Daily Rate
------------------------------------------------------------------
Rev per Av. Room
-------------
(1) Total $ amount of Capital Reserves required annually by loan documents
====================================================================================================================================
INCOME
--------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
----------------------------------------------------------------------------------------------
Period Ended PRECEDING YR.
UNDERWRITING 3RD 2ND (fm NOI Adj TTM/YTD (2) YYYY-U/W YYYY-YYYY
Statement Classification (yr) BASE LINE PRECEDING PRECEDING Sheet) AS OF// VARIANCE VARIANCE
----------------------------------------------------------------------------------------------
Room Revenue
-----------------------------------------------------------------------------------------------
Food & Beverage Revenues
-----------------------------------------------------------------------------------------------
Telephone Revenue
-----------------------------------------------------------------------------------------------
Other Departmental Revenue
-----------------------------------------------------------------------------------------------
Other Income
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DEPARTMENTAL REVENUE
-----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these YTD/TTM numbers.
OPERATING EXPENSES:
-----------------------------------------------------------------------------------------------
DEPARTMENTAL
-----------------------------------------------------------------------------------------------
Room
-----------------------------------------------------------------------------------------------
Food & Beverage
-----------------------------------------------------------------------------------------------
Telephone Expenses
-----------------------------------------------------------------------------------------------
Other Dept. Expenses
-----------------------------------------------------------------------------------------------
DEPARTMENTAL EXPENSES:
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
DEPARTMENTAL INCOME:
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
GENERAL/UNALLOCATED
-----------------------------------------------------------------------------------------------
Real Estate Taxes
-----------------------------------------------------------------------------------------------
Property Insurance
-----------------------------------------------------------------------------------------------
Utilities
-----------------------------------------------------------------------------------------------
Repairs and Maintenance
-----------------------------------------------------------------------------------------------
Franchise Fee
-----------------------------------------------------------------------------------------------
Management Fees
-----------------------------------------------------------------------------------------------
Payroll & Benefits
-----------------------------------------------------------------------------------------------
Advertising & Marketing
-----------------------------------------------------------------------------------------------
Professional Fees
-----------------------------------------------------------------------------------------------
General and Administrative
-----------------------------------------------------------------------------------------------
Other Expenses
-----------------------------------------------------------------------------------------------
Ground Rent
-----------------------------------------------------------------------------------------------
TOTAL GENERAL/UNALLOCATED
-----------------------------------------------------------------------------------------------
(For CMSA files, Total Expenses =
Dept. Exp + General Exp.)
-----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
-----------------------------------------------------------------------------------------------
(=Departmental Revenue/(Dept. Exp.+
General Exp.))
-----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Capital Expenditures
-----------------------------------------------------------------------------------------------
Extraordinary Capital Expenditures
-----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*NET CASH FLOW
-----------------------------------------------------------------------------------------------
------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
-----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history.Comments from the most recent NOI Adjustment
Worksheet should be carried forward to Operating Statement Analysis Report.Year-over-year variances (either higher or lower) must be
explained and noted for the following: greater than 10% DSCR CHANGE, greater than 15% DEPT REVENUE, DEPT EXPENSES, GENERAL EXPENSES
OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
S-3
HEALTHCARE OPERATING STATEMENT ANALYSIS REPORT
AS OF MM/DD/YY
====================================================================================================================================
PROPERTY OVERVIEW
---------------
PROSPECTUS ID
--------------------------------------------
Current Scheduled Loan Current Allocated Loan Amount %
Balance/Paid to Date
--------------------------------------------
Property Name
------------------------------
Property Type
-----------------------------------------------------------------------------------------------
Property Address, City, State
-----------------------------------------------------------------------------------------------
Net Rentable SF/Units/Pads,Beds Use second box to specify sqft.,units...
------------------------------
Year Built/Year Renovated
------------------------------
Cap Ex Reserve (annually)/per specify annual/per unit...
Unit.etc. (1)
-----------------------------------------------------------------------------------------------
Year of Operations UNDERWRITING MM/DD/YY MM/DD/YY MM/DD/YY MM/DD/YY
-----------------------------------------------------------------------------------------------
Occupancy Rate (physical)
-----------------------------------------------------------------------------------------------
Occupancy Date
-----------------------------------------------------------------------------------------------
Average Rental Rate
-----------------------------------------------------------------------------------------------
(1) Total $ amount of Capital Reserves required annually by loan documents
====================================================================================================================================
INCOME:
--------------------------------------------------
Number of Mos. Covered (prcdng yr (prcdng yr to
to base) 2nd prcdng)
----------------------------------------------------------------------------------------------
Period Ended PRECEDING YR.
UNDERWRITING 3RD 2ND (fm NOI Adj TTM/YTD (2) YYYY-U/W YYYY-YYYY
Statement Classification (yr) BASE LINE PRECEDING PRECEDING Sheet) AS OF// VARIANCE VARIANCE
----------------------------------------------------------------------------------------------
Gross Potential Rent (3)
-----------------------------------------------------------------------------------------------
Less: Vacancy Loss
-----------------------------------------------------------------------------------------------
OR
-----------------------------------------------------------------------------------------------
Private Pay (3)
-----------------------------------------------------------------------------------------------
Medicare/Medicaid
-----------------------------------------------------------------------------------------------
Nursing/Medical Income
-----------------------------------------------------------------------------------------------
Meals Income
-----------------------------------------------------------------------------------------------
Other Income
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*EFFECTIVE GROSS INCOME
-----------------------------------------------------------------------------------------------
(2) Servicer will not be expected to "Normalize" these TTM/YTD numbers.
(3) Use either Gross Potential (with Vacancy Loss) or Private Pay/Medicare/Medicaid;
use negative $amt for Vacancy Loss
OPERATING EXPENSES:
-----------------------------------------------------------------------------------------------
Real Estate Taxes
-----------------------------------------------------------------------------------------------
Property Insurance
-----------------------------------------------------------------------------------------------
Utilities
-----------------------------------------------------------------------------------------------
Repairs and Maintenance
-----------------------------------------------------------------------------------------------
Management Fees
-----------------------------------------------------------------------------------------------
Payroll & Benefits
-----------------------------------------------------------------------------------------------
Advertising & Marketing
-----------------------------------------------------------------------------------------------
Professional Fees
-----------------------------------------------------------------------------------------------
General and Administrative
-----------------------------------------------------------------------------------------------
Room expense - housekeeping
-----------------------------------------------------------------------------------------------
Meal expense
-----------------------------------------------------------------------------------------------
Other Expenses
-----------------------------------------------------------------------------------------------
Ground Rent
-----------------------------------------------------------------------------------------------
*TOTAL OPERATING EXPENSES
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*NET OPERATING INCOME
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Capital Expenditures
-----------------------------------------------------------------------------------------------
Extraordinary Capital
Expenditures
-----------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*NET CASH FLOW
-----------------------------------------------------------------------------------------------
-------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER)
-----------------------------------------------------------------------------------------------
*NET CASH FLOW AFTER DEBT SERVICE
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NOI/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
*DSCR: (NCF/DEBT SERVICE)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------
SOURCE OF FINANCIAL DATA:
-----------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
------------------------------------------------------------------------------------------------------------------------------------
NOTES AND ASSUMPTIONS: Years above will roll, always showing a 3yr sequential history. Comments from the most recent NOI
Adjustment Worksheet should be carried forward to Operating Statement Analysis Report. Year-over-year variances (either higher or
lower) must be explained and noted for the following: greater than 10% DSCR CHANGE, greater than 15% EGI/TOTAL OPERATING EXPENSES
OR TOTAL CAPITAL ITEMS.
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
* Used in the CMSA Comparative Financial Status Report/CMSA Property File/CMSA
Loan Periodic Update File. Note that information for multiple property loans
must be consolidated (if available) for reporting to the CMSA Loan Periodic
Update file.
S-4
EXHIBIT T
FORM OF INTERIM DELINQUENT LOAN STATUS REPORT
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
AS OF __________________
(LOAN LEVEL REPORT
-----------------------------------------------------------
S4 L8
-----------------------------------------------------------
LOAN PAID COMMENTS
PROSPECTUS ID THRU DATE
-----------------------------------------------------------
-----------------------------------------------------------
LOAN(S) DELINQUENT AS OF MONTH END
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
-----------------------------------------------------------
T-1
EXHIBIT U
FORM OF CMSA LOAN PERIODIC UPDATE FILE
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT )
Cross Referenced as "L"
--------------------------------------- --------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
--------------------------------------- --------------------------------------------------------------------------------------------
Character Set ASCII
--------------------------------------- --------------------------------------------------------------------------------------------
Field Delineation Comma
--------------------------------------- --------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
--------------------------------------- --------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
--------------------------------------- --------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
--------------------------------------- --------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch);
Blocking Factor; Record Length
--------------------------------------- --------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
--------------------------------------- --------------------------------------------------------------------------------------------
Group Id 2 AN XXX9701A Unique Identification Number Assigned To Each
Loan Group Within An Issue
--------------------------------------- --------------------------------------------------------------------------------------------
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each
Collateral Item In A Pool
--------------------------------------- --------------------------------------------------------------------------------------------
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each
Collateral Item In The Prospectus
--------------------------------------- --------------------------------------------------------------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments Made To Certificateholders
--------------------------------------- --------------------------------------------------------------------------------------------
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at Beginning of
current period that is part of the trust
--------------------------------------- --------------------------------------------------------------------------------------------
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of
current period that is part of the trust
--------------------------------------- --------------------------------------------------------------------------------------------
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One frequency < the
date the loan is due for next payment
--------------------------------------- --------------------------------------------------------------------------------------------
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination Of The
Current Period Gross Interest Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To Calculate The
Current Period Scheduled Interest
--------------------------------------- --------------------------------------------------------------------------------------------
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make Its Final Payment
--------------------------------------- --------------------------------------------------------------------------------------------
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer And Trustee
--------------------------------------- --------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against Current Note
Rate = Net Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To Calculate
The Current Period Remittance Int.
--------------------------------------- --------------------------------------------------------------------------------------------
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination Of The Next
Period Gross Interest Rate
--------------------------------------- --------------------------------------------------------------------------------------------
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate Applicable To Calc
Of The Next Period Sch. Interest
--------------------------------------- --------------------------------------------------------------------------------------------
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To Change
--------------------------------------- --------------------------------------------------------------------------------------------
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P&I Amount Is Next Scheduled To Change
--------------------------------------- --------------------------------------------------------------------------------------------
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due For The Current
Period that goes to the trust
--------------------------------------- --------------------------------------------------------------------------------------------
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For The
Current Period that goes to the trust
--------------------------------------- --------------------------------------------------------------------------------------------
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment Due For
Current Period for the trust
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
U-1
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due For The
Current Period
------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During
The Related Collection Period
------------------------------------------------------------------------------------------------------------------------------------
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
------------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To Prepayment
Of Loan Prior To Maturity
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Interest Excess 31 Numeric 1000.00 Interest Shortfall or Excess as calculated by Servicer
(Shortfall) per the Trust documents
------------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
------------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction -
The difference between a full advance and the
reduced advance is the ASER or as defined in the
Trust documents
------------------------------------------------------------------------------------------------------------------------------------
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most
Recent ASER Date. Field not considered applicable to ASER.)
------------------------------------------------------------------------------------------------------------------------------------
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement Reduction
------------------------------------------------------------------------------------------------------------------------------------
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of The
Current Period
------------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current Period
------------------------------------------------------------------------------------------------------------------------------------
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of The
Current Period
------------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current Period
------------------------------------------------------------------------------------------------------------------------------------
Status of Loan 40 AN 1 See Status Of Loan Legend
------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else "N")
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then print
that date otherwise leave empty
------------------------------------------------------------------------------------------------------------------------------------
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same date then print
that date otherwise leave empty
------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
------------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to the
Trust per the Trust Documents
------------------------------------------------------------------------------------------------------------------------------------
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from the
Trust per the Trust Documents
------------------------------------------------------------------------------------------------------------------------------------
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds Received
(as defined in Trust documents)
------------------------------------------------------------------------------------------------------------------------------------
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
------------------------------------------------------------------------------------------------------------------------------------
Modification Code 49 Numeric 1 See Modification Codes Legend
------------------------------------------------------------------------------------------------------------------------------------
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
------------------------------------------------------------------------------------------------------------------------------------
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if missing
Operating Expenses any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Preceding Fiscal Yr Debt Svc Cvrge
Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year 57 Numeric 0.85 P59 - If Multiple properties, Use weighted average by using
Physical Occupancy the calculation [Current Allocated % (Prop) * Occupancy
(Oper)] for each Property, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year 58 AN YYYYMMDD P53 - If Multiple properties and all the same then print the
Financial As of Date date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 60 Numeric 1000.00 P62 - If Multiple properties then sum the value, if missing
Operating Expenses any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 62 Numeric 1000.00 P64 - If Multiple properties then sum the value, if missing
Debt Service Amount any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Second Preceding Fiscal Year Debt
Service Coverage Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 64 Numeric 0.85 P66 - If Multiple properties, Use weighted average by using
Physical Occupancy the calculation [Current Allocated % (Prop) * Occupancy
(Oper)] for each Property, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 65 AN YYYYMMDD P60 - If Multiple properties and all the same then print the
Financial As of Date date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue 66 Numeric 1000.00 P68 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum the value, if missing
any then populate using the "DSCR Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate using the "DSCR
Indicator Legend" rule. Most Recent Debt Service Coverage
Ratio using NOI
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use weighted average by using
the calculation [Current Allocated % (Prop) * Occupancy
(Oper)] for each Property, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all the same then print the
date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
U-2
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all the same then print the
date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all the same then print the
date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75 Numeric 100000.00 P25 - If Multiple properties then sum the value, if missing
any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Special Servicer 77 AN YYYYMMDD Date Transferred To The Special Servicer
Transfer Date
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer or Primary Servicer
------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be 79 AN YYYYMMDD P26 - If Multiple properties then print the latest date from
Resolved or Foreclosed the affiliated properties. If in Foreclosure - Expected Date
of Foreclosure and if REO - Expected Sale Date.
------------------------------------------------------------------------------------------------------------------------------------
Blank 80 AN Blank Left blank on purpose. (Note: was previously Year Renovated.
Use the Property File field 15 instead)
------------------------------------------------------------------------------------------------------------------------------------
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment Date. Date will be the
same as setup file unless the loan is modified and a new
date assigned
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator 82 AN T or Y P75 - T= Trailing 12 months Y = Year to Date, Check Start &
End Date Applies to field L66 to L73. If Multiple
properties and all the same then print the value, if missing
any or if the values are not the same, then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that information changed last in the
setup file by loan
------------------------------------------------------------------------------------------------------------------------------------
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
------------------------------------------------------------------------------------------------------------------------------------
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or properties were
contributed. For Multiple properties print the latest date
from the affiliated properties
------------------------------------------------------------------------------------------------------------------------------------
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties Underlying the Mortgage Loan
------------------------------------------------------------------------------------------------------------------------------------
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was calculated when there
are multiple properties. See DSCR Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was calculated when there
are multiple properties. See DSCR Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was calculated when there
are multiple properties. See DSCR Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was calculated should be
the same for each financial period. See NOI/NCF Indicator
Legend. P84 - If Multiple Properties and all the same then
print value, if missing any or if the values are not the
same, then leave empty.
------------------------------------------------------------------------------------------------------------------------------------
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new borrower- empty if never
assumed
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L58. If Multiple properties then sum
the value, if missing any then populate using the "DSCR
Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service Coverage Ratio using
NCF related to Financial As of Date L58. If Multiple
properties populate using the "DSCR Indicator Legend" rule.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net Cash Flow related to
Financial As of Date L65. If Multiple properties then sum
the value, if missing any then populate using the "DSCR
Indicator Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year 95 Numeric 2.55 P81 - Second Preceding Fiscal Year Debt Service Coverage
DSCR (NCF) Ratio using Net Cash Flow related to Financial As of Date
L65. If Multiple properties populate using the "DSCR
Indicator Legend" rule.
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow related to Financial As of
Ending Date L73. If Multiple properties then sum the value,
if missing any then populate using the "DSCR Indicator
Legend" rule
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service Coverage Ratio using Net Cash
Flow related to Financial As of Ending Date L73. If Multiple
properties populate using the "DSCR Indicator Legend" rule.
------------------------------------------------------------------------------------------------------------------------------------
Defeasance Status 98 AN Text See Defeasance Status Legend
------------------------------------------------------------------------------------------------------------------------------------
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of the principal balance
over the defined appraisal % or as defined in the trust
documents
------------------------------------------------------------------------------------------------------------------------------------
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate ARA
------------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 101 AN Y S87 - Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
U-3
------------------------------------------------------------------------------------------------------------------------------------
WORKOUT STRATEGY CODE LEGEND STATUS OF MORTGAGE LOAN
------------------------------------------------------------------------------------------------------------------------------------
LEGEND
------------------------------------------------------------------------------------------------------------------------------------
1 Modification A Payment Not Received But Still In Grace Period
------------------------------------------------------------------------------------------------------------------------------------
2 Foreclosure B Late Payment But Less Than 30 days Delinquent
------------------------------------------------------------------------------------------------------------------------------------
3 Bankruptcy 0 Current
------------------------------------------------------------------------------------------------------------------------------------
4 Extension 1 30-59 Days Delinquent
------------------------------------------------------------------------------------------------------------------------------------
5 Note Sale 2 60-89 Days Delinquent
------------------------------------------------------------------------------------------------------------------------------------
6 DPO 3 90+ Days Delinquent
------------------------------------------------------------------------------------------------------------------------------------
7 REO 4 Assumed Scheduled Payment (Performing Matured Balloon)
------------------------------------------------------------------------------------------------------------------------------------
8 Resolved 7 Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
9 Pending Return to Master Servicer 9 REO
------------------------------------------------------------------------------------------------------------------------------------
10 Deed In Lieu Of Foreclosure
------------------------------------------------------------------------------------------------------------------------------------
11 Full Payoff MODIFICATION CODE
------------------------------------------------------------------------------------------------------------------------------------
12 Reps and Warranties LEGEND
------------------------------------------------------------------------------------------------------------------------------------
13 Other or TBD 1 Maturity Date Extension
------------------------------------------------------------------------------------------------------------------------------------
2 Amortization Change
------------------------------------------------------------------------------------------------------------------------------------
LIQUIDATION/PREPAYMENT CODE 3 Principal Write-Off
------------------------------------------------------------------------------------------------------------------------------------
LEGEND 4 Combination
------------------------------------------------------------------------------------------------------------------------------------
U-4
EXHIBIT V-1
FORM OF CERTIFICATEROLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS) -
Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
In accordance with Section 3.15 of the Pooling and Servicing
Agreement dated as of July 10, 2002 (the "Pooling and Servicing Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor"),
Wachovia Bank, National Association, as master servicer, Lend Lease Asset
Management, L.P., as special servicer, LaSalle Bank National Association, as
trustee (the "Trustee'), and ABN AMRO Bank N.V., as fiscal agent, with respect
to the Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class _____
Certificates.
2. The undersigned is requesting access to the information posted
to the Trustee's Internet Website pursuant to Section 4.02 of the
Pooling and Servicing Agreement, or the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information
confidential (except from its agents and auditors), and such
Information will not, without the prior written consent of the Trustee,
be disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but
only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential.
3. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the Securities
Act.
V-1-1
4. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify
the Depositor, the Trustee, the Master Servicer, the Special Servicer
and the Trust for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
-----------------------------------------------------------
BENEFICIAL HOLDER OF A CERTIFICATE
By:
------------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
V-1-2
EXHIBIT V-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Services (CMBS) -
Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 2002-MW1
Re: Xxxxxxx Xxxxx Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2002-MW1 (the "Certificates")
In accordance with Section 3.15 of the Pooling and Servicing
Agreement, dated as of July 10, 2002 (the "Pooling and Servicing Agreement"),
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor (the "Depositor")
Wachovia Bank, National Association, as master servicer, Lend Lease Asset
Management, L.P., as special servicer, LaSalle Bank National Association as
trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent, with respect
to the Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class
Certificates.
2. The undersigned is requesting access to the information posted
to the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule attached
hereto pursuant to Section 3.15 of the Pooling and Servicing Agreement (the
"Information') for use in evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, the undersigned will keep the Information confidential
(except from its agents and auditors), and such Information will not, without
the prior written consent of the Trustee, be disclosed by the undersigned or by
its officers, directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in whole or in
part.
The undersigned will not use or disclose the Information in any manner which
could result in a violation of any provision of the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended, or would require registration of any Certificate pursuant to Section 5
of the Securities Act.
4. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
V-2-1
IN WITNESS WHEREOF, the undersigned has caused its name to be
signed hereto by its duly authorized officer, as of the day and year written
above.
------------------------------------------------------
[PROSPECTIVE PRUCAHSER]
By:
-------------------------------------------
Name:
--------------------------------
Title:
--------------------------------
Phone:
--------------------------------
V-2-2
EXHIBIT W
FORM OF CMSA BOND FILE REPORT
CSSA
BOND LEVEL FILE LAYOUT
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
VERSION 1.0 (12/31/98)
--------------------------------------- --------------------------------------------------------------------------------------------
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Character Set ASCII
Field Delineation Comma
--------------------------------------- --------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic (Consistent With CSSA
Periodic Loan File)
Distribution Date 2 AN YYYYMMDD Date Payments Made To Certificateholders
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be Considered Holder Of
Record
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
Original Balance 6 Numeric 1000000.00 The Class Balance At Inception Of The Issue
Notional Flag 7 AN Y "Y" For Notional
Beginning Balance 8 Numeric 100000.00 The Outstanding Principal Balance Of The Class At The
Beginning Of The Current Period
Scheduled Principal 9 Numeric 1000.00 The Scheduled Principal Paid
Unscheduled Principal 10 Numeric 1000.00 The Unscheduled Principal Paid
Total Principal Distribution 11 Numeric 1000.00 Total Principal Payment Made
Deferred Interest 12 Numeric 1000.00 Any Interest Added To The Class Balance Including Negative
Amortization
Realized Loss (Gain) 13 Numeric 1000.00 The Total Realized Loss of (Gain) Allocated
Cumulative Realized Losses 14 Numeric 100000.00 Realized Losses Allocated Cumulative-To-Date.
Ending Balance 15 Numeric 1000.00 Outstanding Principal Balance Of The Class At The End Of The
Current Period
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The Calculation Of
Current Period Remittance Interest Rate
Current Remittance Rate / 17 Numeric 0.075 Annualized Interest Rate Applicable To The Calculation Of
Current Period
Pass-Through Rate Remittance Interest
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,4=Actual/Actual,
5=Actual/366
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To The Calculation
Of Current Period Remittance Interest
Interest Accrued 20 Numeric 1000.00 The Amount Of Accrued Interest
Prepayment Penalty/Premium Allocation 21 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated
Yield Maintenance Allocation 22 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated
Other Interest Distribution 23 Numeric 1000.00 Other Specific Additions To Interest
Prepayment Interest Shortfall 24 Numeric 1000.00 Total Interest Adjustments For PPIS
Appraisal Reduction Allocation 25 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Other Interest Shortfall 26 Numeric 1000.00 Total Interest Adjustments Other Than PPIS
Total Interest Distribution 27 Numeric 1000.00 The Total Interest Payment Made
Cumulative Appraisal Reduction 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Cumulative Prepayment 29 Numeric 1000.00 Total Amount Of Prepayment Penalties Allocated To Date
Penalty/Premium Allocation
Cumulative Yield Maintenance Allocation 30 Numeric 1000.00 Total Amount Of Yield Maintenance Penalties Allocated To Date
Beginning Unpaid Interest Balance 31 Numeric 1000.00 Outstanding Interest Shortfall At The Beginning Of The
Current Period
Ending Unpaid Interest Balance 32 Numeric 1000.00 Outstanding Interest Shortfall At The End Of The Current
Period
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff & Xxxxxx
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By Duff & Xxxxxx
DCR - Date Transmitted from 35 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To The
Rating Agency Trustee By Duff & Xxxxxx
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By Fitch
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of The Class By Fitch
W-1
Fitch - Date Transmitted from 38 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To The
Rating Agency Trustee By Fitch
Xxxxx'x - Original Rating 39 AN AAA The Original Rating Of The Class By Moody's
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of The Class By Moody's
Moody's - Date Transmitted from 41 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To The
Rating Agency Trustee By Moody's
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By Standard & Poors
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By Standard & Poors
Standard & Poors - Date Transmitted 44 AN YYYYMMDD The Date On Which The Most Recent Rating Was Provided To The
from Rating Agency Trustee By Standard & Poors
--------------------------------------- --------------------------------------------------------------------------------------------
W-2
EXHIBIT X
FORM OF CMSA COLLATERAL SUMMARY FILE
CSSA
COLLATERAL SUMMARY FILE LAYOUT
COLLATERAL LEVEL SUMMARY - SUMMARIZES CSSA 100.1 PERIODIC FILE
VERSION 1.0 (12/31/98)
------------------------------------------------------------------------------------------------------------------------------------
PERIODIC
FIELD FORMAT
FIELD NAME REFERENCE # # TYPE EXAMPLE DESCRIPTION/COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
Field Delineation Comma
------------------------------------------------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
Group Id 2 AN XXX97001 Unique Identification Number Assigned To Each Loan
Group Within An Issue
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certificateholders
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
Ending current period collateral 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at end of
balance current period
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
1 month Delinquent - scheduled 8 Numeric 1000.00 Scheduled principal balance of loans one month
balance delinquent
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
2 months Delinquent - scheduled 10 Numeric 1000.00 Scheduled principal balance of loans two months
balance delinquent
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
3 months Delinquent - scheduled 12 Numeric 1000.00 Scheduled principal balance of loans three months
balance delinquent
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides loans in
delinquency
Foreclosure - scheduled balance 14 Numeric 1000.00 Scheduled principal balance of loans in foreclosure
- overrides loans in delinquency
REO - number 15 Numeric 1 Number of REOs - overrides loans in delinquency or
foreclosure
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrrides loans in delinquency
or foreclosure
Specially serviced - number 17 Numeric 1 Number of specially serviced loans - includes loans
in delinquency, foreclosure, REO
Specially serviced - scheduled 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
balance
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included in
delinquency aging category
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in bankruptcy -
included in delinquency aging category
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the current period
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in full for the
current period.
Total unscheduled principal 27+28 23 Numeric 1000.00 Includes prepayments in full, partial pre-payments,
curtailments in the current period
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
penalties on the loans for the period.
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current period
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction Allocated
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The End Of
The Current Period
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve accounts
pledged as credit enhancement
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve accounts pledged
as credit enhancement
Amortization WAM 34 Numeric 333 Weighted average maturity based on amortization term
Maturity WAM 35 Numeric 333 Weighted average maturity based on term to maturity
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to calculate gross
interest
------------------------------------------------------------------------------------------------------------------------------------
X-1
EXHIBIT Y
FORM OF CMSA FINANCIAL FILE
ATTACHMENT A:
CMSA FINANCIAL FILE - CATEGORY CODE MATRIX
---------------------------------------------------------------------------------------------------------------------
PROPERTY TYPE
---------------------------------------------------------------------------------------------------------------------
CODE/ MULTI- HEALTH
---------------------------------------------------------------------------------------------------------------------
SORT ORDER DESCRIPTION COMMERCIAL FAMILY CARE LODGING
---------------------------------------------------------------------------------------------------------------------
INCOME
----------------------------------------------------------------------------------------------------------
010GROSRNT Gross Potential Rent o o o o
----------------------------------------------------------------------------------------------------------
020VACANCY Less: Vacancy/Collection Loss o o o
----------------------------------------------------------------------------------------------------------
030BASERNT Base Rent o o
----------------------------------------------------------------------------------------------------------
040EXPREMB Expense Reimbursement o
----------------------------------------------------------------------------------------------------------
050PCTRENT Percentage Rent o
----------------------------------------------------------------------------------------------------------
060ROOMREV Room Revenue o
----------------------------------------------------------------------------------------------------------
070FOODBEV Food & Beverage Revenues o
----------------------------------------------------------------------------------------------------------
080PHONE Telephone Revenue o
----------------------------------------------------------------------------------------------------------
090OTHDREV Other Departmental Revenue o
----------------------------------------------------------------------------------------------------------
100PVTPAY Private Pay o
----------------------------------------------------------------------------------------------------------
110MEDCARE Medicare/Medicaid o
----------------------------------------------------------------------------------------------------------
120NURSING Nursing/Medical Income o
----------------------------------------------------------------------------------------------------------
130MEALS Meals Income o
----------------------------------------------------------------------------------------------------------
140LAUNDRY Laundry/Vending Income o
----------------------------------------------------------------------------------------------------------
150PARKING Parking Income o o
----------------------------------------------------------------------------------------------------------
160OTHERIN Other Income o o o o
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
EXPENSES 270ROOMS Room (Department) o
----------------------------------------------------------------------------------------------------------
280FOODBEV Food & Beverage (Departmental) o
----------------------------------------------------------------------------------------------------------
290PHONE Telephone Expenses (Departmental) o
----------------------------------------------------------------------------------------------------------
300OTHDEPT Other Dept. Expenses o
----------------------------------------------------------------------------------------------------------
310RETAXES Real Estate Taxes o o o o
----------------------------------------------------------------------------------------------------------
320PROPINS Property Insurance o o o o
----------------------------------------------------------------------------------------------------------
330UTILITI Utilities o o o o
----------------------------------------------------------------------------------------------------------
340REPAIRS Repairs and Maintenance o o o o
----------------------------------------------------------------------------------------------------------
350JANITOR Janitorial o
----------------------------------------------------------------------------------------------------------
000XXXXXXX Xxxxxxxxx Fee o
----------------------------------------------------------------------------------------------------------
370MANAGEM Management Fees o o o o
----------------------------------------------------------------------------------------------------------
380PAYROLL Payroll & Benefits o o o o
----------------------------------------------------------------------------------------------------------
390MARKETI Advertising & Marketing o o o o
----------------------------------------------------------------------------------------------------------
400PROFESS Professional Fees o o o o
----------------------------------------------------------------------------------------------------------
410GENERAL General and Administrative o o o o
----------------------------------------------------------------------------------------------------------
420ROOMS Room Expense - Housekeeping o
----------------------------------------------------------------------------------------------------------
430MEALS Meal expense o
----------------------------------------------------------------------------------------------------------
440OTHEREX Other Expenses o o o
----------------------------------------------------------------------------------------------------------
450GROUNDR Ground Rent o o o o
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
RESRV 490LEASING Leasing Commissions o
&
CAPEX
----------------------------------------------------------------------------------------------------------
500TENANTI Tenant Improvements o
----------------------------------------------------------------------------------------------------------
510CAPEX Capital Expenditures o o o o
----------------------------------------------------------------------------------------------------------
520EXCAPEX Extraordinary Capital o o o o
Expenditures
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
DATA TYPES
---------------------------------------------------------------------------------------------------------------------
YTD Current Year - Year to Date
---------------------------------------------------------------------------------------------------------------------
AN Annual (prior 12 months' data...fiscal year - audited)
---------------------------------------------------------------------------------------------------------------------
TR Trailing 12 months' data
---------------------------------------------------------------------------------------------------------------------
UB Underwriting Base Line
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
STATEMENT TYPES
---------------------------------------------------------------------------------------------------------------------
BOR Borrower's Statement (as submitted)
---------------------------------------------------------------------------------------------------------------------
ADJ Adjustments to Borrower's Statement
---------------------------------------------------------------------------------------------------------------------
NOR Normalized Statement (to CMSA format)
---------------------------------------------------------------------------------------------------------------------
Y-1
CMSA FINANCIAL FILE SPECIFICATIONS
--------------------------------------------------------------------------------
RECORD LAYOUT
--------------------------------------------------------------------------------
Fields: Trans ID From CMSA Loan Setup File, Field #1
Loan # From CMSA Property File, Field #2
Property Seq # 001 - 999
YYYYMM Financial Statement Beginning Date
YYYYMM Financial Statement Ending Date
Data Type See attached values
Stmt Type See attached values
Category Code See attached values
Amount Example : 999999.99
(Enter as an Absolute Value)
--------------------------------------------------------------------------------
Key: Trans ID
Loan #
Property Seq #
YYYYMM
Data Type Financial Statement Ending Date
Statement Type
Category Code
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SAMPLE ASCII PRESENTATION (PREFERRED)
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,010GROSRNT,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,020VACANCY,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,030BASERNT,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,160OTHERIN,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,310RETAXES,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,320PROPINS,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,330UTILITI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,340REPAIRS,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,350JANITOR,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,370MANAGEM,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,380PAYROLL,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,390MARKETI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,410GENERAL,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,440OTHEREX,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,500TENANTI,999999.99
--------------------------------------------------------------------------------
XX97D4, 12768-34,001,199901,199903,YTD,NOR,510CAPEX,999999.99
--------------------------------------------------------------------------------
SAMPLE SPREADSHEET PRESENTATION
----------------------------------------------------------------------------------------------------
BEGIN ENDING DATA STMT
TRANS ID LOAN # PROP # YYYYMM YYYYMM TYPE TYPE CATEGORY AMOUNT
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 010GROSRNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 020VACANCY 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 030BASERNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 160OTHERIN 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 310RETAXES 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 320PROPINS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 330UTILITI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 340REPAIRS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 350JANITOR 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 370MANAGEM 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 380PAYROLL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 390MARKETI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 410GENERAL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 440OTHEREX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 500TENANTI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 001 199901 199903 YTD NOR 510CAPEX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 010GROSRNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 020VACANCY 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 030BASERNT 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 160OTHERIN 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 310RETAXES 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 320PROPINS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 330UTILITI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 340REPAIRS 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 350JANITOR 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 370MANAGEM 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 380PAYROLL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 390MARKETI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 410GENERAL 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 440OTHEREX 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 500TENANTI 999999.99
----------------------------------------------------------------------------------------------------
XX97D4 12768-34 002 199901 199903 YTD NOR 510CAPEX 999999.99
Y-2
EXHIBIT Z
FORM OF CMSA LOAN SETUP FILE
CMSA "LOAN SETUP" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "S"
--------------------------------------- --------------------------------------------------------------------------------------------
SPECIFICATION DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
------------------------------------------------------------------------------------------------------------------------------------
Character Set ASCII
------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
------------------------------------------------------------------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
------------------------------------------------------------------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per block)
------------------------------------------------------------------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-Inch); Blocking
Factor; Record Length
------------------------------------------------------------------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD FORMAT
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
------------------------------------------------------------------------------------------------------------------------------------
Group Id 2 AN XXX9701A Unique Indentification Number Assigned To Each Loan Group
Within An Issue
------------------------------------------------------------------------------------------------------------------------------------
Loan Id 3 AN 00000000012345 Unique Servicer Loan Number Assigned To Each Collateral
Item In A Pool
------------------------------------------------------------------------------------------------------------------------------------
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned To Each Collateral
Item In The Prospectus
------------------------------------------------------------------------------------------------------------------------------------
Original Note Amount 5 Numeric 1000000.00 The Mortgage Loan Balance At Inception Of The Note
------------------------------------------------------------------------------------------------------------------------------------
Original Term Of Loan 6 Numeric 240 Original Number Of Months Until Maturity Of Loan
------------------------------------------------------------------------------------------------------------------------------------
Original Amortization Term 7 Numeric 360 Original Number Of Months Loan Amortized Over
------------------------------------------------------------------------------------------------------------------------------------
Original Note Rate 8 Numeric 0.095 The Note Rate At Inception Of The Note
------------------------------------------------------------------------------------------------------------------------------------
Original Payment Rate 9 Numeric 0.095 Original Rate Payment Calculated On
------------------------------------------------------------------------------------------------------------------------------------
First Loan Payment Due Date 10 AN YYYYMMDD First Payment Date On The Mortgage Loan
------------------------------------------------------------------------------------------------------------------------------------
Grace Days Allowed 11 Numeric 10 Number Of Days From Due Date Borrower Is Permitted To
Remit Payment
------------------------------------------------------------------------------------------------------------------------------------
Interest Only (Y/N) 12 AN Y Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Balloon (Y/N) 13 AN Y Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Interest Rate Type 14 Numeric 1 1=Fixed, 2=Arm, 3=Step, 9=Other
------------------------------------------------------------------------------------------------------------------------------------
Interest Accrual Method Code 15 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360, 4=Actual/Actual,
5=Actual/366, 6=Simple, 7=78's
------------------------------------------------------------------------------------------------------------------------------------
Interest in Arrears (Y/N) 16 AN Y Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Payment Type Code 17 Numeric 1 See Payment Type Code Legend
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Lock-out End Date 18 AN YYYYMMDD Date After Which Loan Can Be Prepaid
------------------------------------------------------------------------------------------------------------------------------------
Yield Maintenance End Date 19 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Yield
Maintenance
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Premium End Date 20 AN YYYYMMDD Date After Which Loan Can Be Prepaid Without Penalty
------------------------------------------------------------------------------------------------------------------------------------
Prepayment Terms Description 21 AN Text Should reflect the information in Annex A or use the
format of LO(36), YM(28), 7(12), O(3). If manually
derived, the Cutoff Date should be the start date for
period counting.
Z-1
------------------------------------------------------------------------------------------------------------------------------------
ARM Index Code 22 AN A See Arm Index Code Legend
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------------------------------------------------------------------
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
--------------------------------------- --------------------------------------------------------------------------------------------
First Rate Adjustment Date 23 AN YYYYMMDD Date Note Rate Originally Changed
------------------------------------------------------------------------------------------------------------------------------------
First Payment Adjustment Date 24 AN YYYYMMDD Date Payment Originally Changed
------------------------------------------------------------------------------------------------------------------------------------
ARM Margin 25 Numeric 0.025 Rate Added To Index Used In The Determination
Of The Gross Interest Rate
------------------------------------------------------------------------------------------------------------------------------------
Lifetime Rate Cap 26 Numeric 0.15 Maximum Rate That The Borrower Must Pay On An Arm
Loan Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Lifetime Rate Floor 27 Numeric 0.05 Minimum Rate That The Borrower Must Pay On An Arm
Loan Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Periodic Rate Increase Limit 28 Numeric 0.02 Maximum Periodic Increase To The Note Rate Allowed
Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Periodic Rate Decrease Limit 29 Numeric 0.02 Minimum Periodic Decrease To The Note Rate Allowed
Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Periodic Pay Adjustment Max-% 30 Numeric 0.03 Max Periodic % Increase To The P&I Payment Allowed
Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Periodic Pay Adjustment Max-$ 31 Numeric 5000.00 Max Periodic Dollar Increase To The P&I Payment
Allowed Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Payment Frequency 32 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually...
------------------------------------------------------------------------------------------------------------------------------------
Rate Reset Frequency 33 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually, 365=Daily
------------------------------------------------------------------------------------------------------------------------------------
Pay Reset Frequency 34 Numeric 1 1=Monthly, 3=Quarterly, 6=Semi-Annually,
12=Annually, 365=Daily
------------------------------------------------------------------------------------------------------------------------------------
Rounding Code 35 Numeric 1 Rounding Method For Sum Of Index Plus Margin
(See Rounding Code Legend)
------------------------------------------------------------------------------------------------------------------------------------
Rounding Increment 36 Numeric 0.00125 Used In Conjunction With Rounding Code
------------------------------------------------------------------------------------------------------------------------------------
Index Look Back In Days 37 Numeric 45 Use Index In Effect X Days Prior To Adjustment Date
------------------------------------------------------------------------------------------------------------------------------------
Negative Amortization Allowed (Y/N) 38 AN Y Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Max Neg Allowed (% Of Orig Bal) 39 Numeric 0.075 Max Lifetime % Increase to the Original Balance
Allowed Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Maximum Negate Allowed ($) 40 Numeric 25000.00 Max Lifetime Dollar Increase to the Original
Balance Allowed Per The Loan Agreement
------------------------------------------------------------------------------------------------------------------------------------
Remaining Term At Contribution 41 Numeric 240 Remaining Number Of Months Until Maturity Of Loan
At Cutoff
------------------------------------------------------------------------------------------------------------------------------------
Remaining Amort Term At Contribution 42 Numeric 360 Remaining Number Of Months Loan Amortized Over
At Cutoff
------------------------------------------------------------------------------------------------------------------------------------
Maturity Date At Contribution 43 AN YYYYMMDD The Scheduled Maturity Date Of The Mortgage Loan
At Contribution
------------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal Balance At
Contribution 44 Numeric 1000000.00 The Scheduled Principal Balance Of The Mortgage
Loan At Contribution
------------------------------------------------------------------------------------------------------------------------------------
Note Rate At Contribution 45 Numeric 0.095 Cutoff Annualized Gross Interest Rate Applicable
To The Calculation Of Scheduled Interest
------------------------------------------------------------------------------------------------------------------------------------
Servicer And Trustee Fee Rate 46 Numeric 0.00025 Cutoff Annualized Fee Paid To The Servicer And
Trustee
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 1 47 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 2 48 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 3 49 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 4 50 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Fee Rate / Strip Rate 5 51 Numeric 0.00001 Cutoff Annualized Fee/Strip Netted Against Current
Note Rate = Net Rate
------------------------------------------------------------------------------------------------------------------------------------
Net Rate At Contribution 52 Numeric 0.0947 Cutoff Annualized Interest Rate Applicable To The
Calculation Of Remittance Interest
------------------------------------------------------------------------------------------------------------------------------------
Periodic P&I Payment At Contribution 53 Numeric 3000.00 The Periodic Scheduled Principal & Interest Payment
at Contribution
------------------------------------------------------------------------------------------------------------------------------------
# Of Properties at Contribution 54 Numeric 13 L86 - The Number Of Properties Underlying The
Mortgage Loan
------------------------------------------------------------------------------------------------------------------------------------
Property Name 55 AN Text P7 - If Multiple properties print "Various"
------------------------------------------------------------------------------------------------------------------------------------
Property Address 56 AN Text P8 - If Multiple properties print "Various"
------------------------------------------------------------------------------------------------------------------------------------
Property City 57 AN Text P9 - If Multiple properties have the same city then
print the city, otherwise print "Various".
Missing information print "Incomplete"
------------------------------------------------------------------------------------------------------------------------------------
Property State 58 AN Text P10 - If Multiple properties have the same state
then print the state, otherwise print "XX" to
represent various. Missing information print "ZZ"
------------------------------------------------------------------------------------------------------------------------------------
Property Zip Code 59 AN Text P11 - If Multiple properties have the same zip code
then print the zip code, otherwise print "Various".
Missing information print "Incomplete"
------------------------------------------------------------------------------------------------------------------------------------
Property County 60 AN Text P12 - If Multiple properties have the same county
then print the county, otherwise print "Various".
Missing information print "Incomplete"
------------------------------------------------------------------------------------------------------------------------------------
Property Type Code 61 AN MF P13 - If Multiple properties have the same
property type code then print the property code,
otherwise print "XX" to represent various.
Missing information print "ZZ"
------------------------------------------------------------------------------------------------------------------------------------
Net Square Feet At Contribution 62 Numeric 25000 P16 - For Multiple properties, if all the same
Property Type, sum the values, if missing any
leave empty
------------------------------------------------------------------------------------------------------------------------------------
Z-2
# Of Units/Beds/Rooms At Contribution 63 Numeric 75 P17 - For Multiple properties, if all the same
Property Type, sum the values, if missing any
leave empty
------------------------------------------------------------------------------------------------------------------------------------
Year Built 64 AN YYYY P14 - If Multiple properties have the same Year
Built then print Year Built else leave empty
------------------------------------------------------------------------------------------------------------------------------------
NOI At Contribution 65 Numeric 100000.00 P47 - If Multiple properties sum the values, if
missing any then populate using the "DSCR
Indicator Legend" rule. Should match the
prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
DSCR (NOI) At Contribution 66 Numeric 2.11 P48 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. DSCR At Contribution
using NOI. Should match the prospectus if
available.
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Value At Contribution 67 Numeric 1000000.00 P49 - If Multiple properties sum the values , if
missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Date At Contribution 68 AN YYYYMMDD P50 - If Multiple properties and all the same then
print the date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Physical Occupancy At Contribution 69 Numeric 0.88 P51 - If Multiple properties, Use weighted average
by using the calculation [Current Allocated %
(Prop) * Occupancy (Oper) ] for each Property, if
missing one then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Revenue At Contribution 70 Numeric 100000.00 P45 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule. Should match the
prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
Operating Expenses At Contribution 71 Numeric 100000.00 P46 - If Multiple properties then sum the value,
if missing any then populate using the "DSCR
Indicator Legend" rule. Should match the
prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
Contribution Financials As Of Date 72 AN YYYYMMDD P44 - If Multiple properties and all the same then
print the date, if missing any then leave empty
------------------------------------------------------------------------------------------------------------------------------------
Recourse (Y/N) 73 AN Y Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) 74 AN Y Y=Yes, S=Subordinate, N= No ground lease, P22 -
If Multiple properties and any one property is
"Y" or "S" print "Y"
------------------------------------------------------------------------------------------------------------------------------------
Cross-Collateralized Loan Grouping 75 AN Text P6 - All Loans With The Same Value Are Crossed,
For example : "X02-1" would be populated in this
field for all related loans, "X02-2" would be
populated for the next group of related loans.
------------------------------------------------------------------------------------------------------------------------------------
Collection Of Escrows (Y/N) 76 AN Y Y=Yes, N=No - Referring to Taxes and Insurance
------------------------------------------------------------------------------------------------------------------------------------
Collection Of Other Reserves (Y/N) 77 AN Y Y=Yes, N=No - Referring to Reserves other than
Taxes and Insurance. If any property has a
value > 0 in P23, this field should be "Y"
------------------------------------------------------------------------------------------------------------------------------------
Lien Position At Contribution 78 Numeric 1 1=First, 2=Second...
------------------------------------------------------------------------------------------------------------------------------------
Hyper Amortizing Begin Date 79 AN YYYYMMDD L81 - Date used to track Anticipated Repayment Date
Loans
------------------------------------------------------------------------------------------------------------------------------------
Defeasance Option Start Date 80 AN YYYYMMDD Date loan can start defeasance
------------------------------------------------------------------------------------------------------------------------------------
Defeasance Option End Date 81 AN YYYYMMDD Date that defeasance ends
------------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 82 AN YYYYMMDD L83 - Distribution Date that the information was
last changed by loan
------------------------------------------------------------------------------------------------------------------------------------
NCF At Contribution 83 Numeric 100000.00 P76 - If Multiple properties sum the values, if
missing any then populate using the "DSCR Indicator
Legend" rule. Net Cash Flow At Contribution.
Should match the prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution 84 Numeric 2.11 P77 - If Multiple properties populate using the
"DSCR Indicator Legend" rule. DSCR At Contribution
using NCF to calculate. Should match the
prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
DSCR Indicator at Contribution 85 AN Text Flag used to explain how the DSCR was calculated
when there are multiple properties. See DSCR
Indicator Legend.
------------------------------------------------------------------------------------------------------------------------------------
Loan Contributor to Securitization 86 AN Text Name of entity ultimately responsible for the reps
and warranties of the loan contributed
------------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 87 AN Y L101 - Y=Yes, N=No
------------------------------------------------------------------------------------------------------------------------------------
Z-3
---------------------------------------------------------------------------------------------------------------------------
ROUNDING CODE ARM INDEX CODE
---------------------------------------------------- -----------------------------------------------------------
LEGEND LEGEND
---------------------------------------------------- -----------------------------------------------------------
1 Unrounded A 11 FHLB COFI (1 Month)
---------------------------------------------------- -----------------------------------------------------------
2 Nearest Percentage Increment B 11 FHLB COFI (6 Month)
---------------------------------------------------- -----------------------------------------------------------
3 Up To Nearest Percentage Increment C 1 Year CMT Weekly Average Treasury
---------------------------------------------------- -----------------------------------------------------------
4 Down To Nearest Percentage Increment D 3 Year CMT Weekly Average Treasury
---------------------------------------------------- -----------------------------------------------------------
E 5 Year CMT Weekly Average Treasury
-----------------------------------------------------------
F Wall Street Journal Prime Rate
--------------------------------------------------- -----------------------------------------------------------
PROPERTY TYPES CODE G 1 Month LIBOR
--------------------------------------------------- -----------------------------------------------------------
LEGEND H 3 Month LIBOR
--------------------------------------------------- -----------------------------------------------------------
MF Multifamily I 6 Month LIBOR
--------------------------------------------------- -----------------------------------------------------------
RT Retail J National Mortgage Index Rate
--------------------------------------------------- -----------------------------------------------------------
HC Health Care All Others Use Short Text Description
--------------------------------------------------- -----------------------------------------------------------
IN Industrial
---------------------------------------------------
WH Warehouse
--------------------------------------------------- -----------------------------------------------------------
MH Mobile Home Park PAYMENT TYPE CODE
--------------------------------------------------- -----------------------------------------------------------
OF Office LEGEND
--------------------------------------------------- -----------------------------------------------------------
MU Mixed Use 1 Fully Amortizing
--------------------------------------------------- -----------------------------------------------------------
LO Lodging 2 Amortizing Balloon
--------------------------------------------------- -----------------------------------------------------------
SS Self Storage 3 Interest Only / Balloon
--------------------------------------------------- -----------------------------------------------------------
OT Other 4 Interest Only / Amortizing
--------------------------------------------------- -----------------------------------------------------------
SE Securities 5 Interest Only / Amortizing / Balloon
--------------------------------------------------------------------------------------------------------------------------
6 Principal Only
-----------------------------------------------------------
7 Hyper-Amortization
-----------------------------------------------------------
9 Other
-----------------------------------------------------------
-----------------------------------------------------------
DSCR INDICATOR
-----------------------------------------------------------
LEGEND
-----------------------------------------------------------
P Partial - Not all properties received
financials, servicer to leave empty
-----------------------------------------------------------
A Average - Not all properties received
financials, servicer allocates Debt
Service only to properties where
financials are received.
-----------------------------------------------------------
F Full - All Statements Collected for
all properties
-----------------------------------------------------------
W Worst Case - Not all properties received
financials, servicer allocates 100% of
Debt Service to all properties where
financials are received.
-----------------------------------------------------------
N None Collected - no financials were
received
-----------------------------------------------------------
C Consolidated-All properties reported on 1
"rolled up" financial from the borrower
---------------------------------------------------------------------------------------------------------------------------
Z-4
EXHIBIT AA
CLASS XP REFERENCE RATE SCHEDULE
INTEREST ACCRUAL DISTRIBUTION CLASS XP INTEREST ACCRUAL DISTRIBUTION CLASS XP
PERIOD DATE REFERENCE RATE PERIOD DATE REFERENCE RATE
----------------- ------------ -------------- ---------------- ------------ --------------
1 8/12/02 7.454490% 43 2/12/06 7.211410%
2 9/12/02 7.454450% 44 3/12/06 7.212070%
3 10/12/02 7.212980% 45 4/12/06 7.552700%
4 11/12/02 7.454370% 46 5/12/06 7.211280%
5 12/12/02 7.212900% 47 6/12/06 7.446290%
6 1/12/03 7.212860% 48 7/12/06 7.205080%
7 2/12/03 7.212820% 49 8/12/06 7.446210%
8 3/12/03 7.213280% 50 09/12/06 7.446160%
9 4/12/03 7.454140% 51 10/12/06 7.204960%
10 5/12/03 7.212680% 52 11/12/06 7.446080%
11 6/12/03 7.454050% 53 12/12/06 7.204870%
12 7/12/03 7.212590% 54 1/12/07 7.208570%
13 8/12/03 7.453960% 55 2/12/07 7.203920%
14 9/12/03 7.453930% 56 3/12/07 7.206850%
15 10/12/03 7.212470% 57 4/12/07 7.449930%
16 11/12/03 7.453840% 58 5/12/07 7.208610%
17 12/12/03 7.212390% 59 6/12/07 7.446520%
18 1/12/04 7.453750% 60 7/12/07 7.205300%
19 2/12/04 7.212300% 61 8/12/07 7.463520%
20 3/12/04 7.212460% 62 9/12/07 7.463590%
21 4/12/04 7.453640% 63 10/12/07 7.221820%
22 5/12/04 7.212200% 64 11/12/07 7.463500%
23 6/12/04 7.453570% 65 12/12/07 7.221740%
24 7/12/04 7.212130% 66 1/12/08 7.463420%
25 8/12/04 7.453500% 67 2/12/08 7.221660%
26 9/12/04 7.453460% 68 3/12/08 7.221910%
27 10/12/04 7.212030% 69 4/12/08 7.463290%
28 11/12/04 7.453390% 70 5/12/08 7.221530%
29 12/12/04 7.211950% 71 6/12/08 7.463200%
30 1/12/05 7.211920% 72 7/12/08 7.221450%
31 2/12/05 7.211880% 73 8/12/08 7.463110%
32 3/12/05 7.212480% 74 9/12/08 7.463070%
33 4/12/05 7.453190% 75 10/12/08 7.221310%
34 5/12/05 7.211760% 76 11/12/08 7.462980%
35 6/12/05 7.453110% 77 12/12/08 7.224610%
36 7/12/05 7.211680% 78 1/12/09 7.224560%
37 8/12/05 7.453030% 79 2/12/09 7.224510%
38 9/12/05 7.452990% 80 3/12/09 7.225430%
39 10/12/05 7.211570% 81 4/14/09 7.466230%
40 11/12/05 7.452910% 82 5/12/09 7.224360%
41 12/12/05 7.211490% 83 6/12/09 7.466120%
42 1/12/06 7.211450% 84 7/12/09 7.224260%
AA-1
EXHIBIT BB
FORM OF PURCHASE OPTION NOTICE
WACHOVIA BANK, NATIONAL ASSOCIATION
[ADDRESS]
[Date]
[Option Holder]
Xxxxxxx Xxxxx Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
Ladies and Gentlemen:
You are the holder of an assignable option (the "Purchase
Option") to purchase Mortgage Loan number ___ from the Trust Fund, pursuant to
Section 3.18 of the pooling and servicing agreement (the "Pooling and Servicing
Agreement") dated as of July 10, 2002, by and among Xxxxxxx Xxxxx Mortgage
Investors, Inc., as depositor, Wachovia Bank, National Association, as master
servicer, Lend Lease Asset Management, L.P., as special servicer, LaSalle Bank
National Association, as trustee and REMIC administrator, and ABN AMRO Bank
N.V., as fiscal agent. Capitalized terms used herein and not otherwise defined
shall have the meaning set forth in the Pooling and Servicing Agreement.
This notice is to inform you that the exercise of your
Purchase Option in respect of Mortgage Loan number ___, pursuant to your
Purchase Option Notice dated ____, a copy of which is attached hereto, is
effective. Pursuant to Section 3.18 of the Pooling and Servicing Agreement and
your Purchase Option Notice, closing of [your] [_____'s] acquisition of Mortgage
Loan number ____ shall occur within ten (10) Business Days of your receipt of
this notice, at the place and in the manner described below.
[Describe closing mechanics. Describe documents or instruments
required to be prepared by Option Holder in connection with assignment and
release of the related Mortgage Loan.]
Upon payment of the Option Price, Mortgage Loan number and the
related Mortgaged Property will be released and the related Mortgage Loan File
will be delivered to [you] [______] or at [your] [_________'s] direction.
Drafts of such instruments of transfer or assignment, in each
case without recourse, reasonably necessary to vest in [you] or [______] the
ownership of Mortgage Loan , together with [describe other documents or
instruments reasonably required to consummate the purchase] should be delivered
to [ ___]for review as soon as is practicable.
[Provide Master Servicer contact information.)
Please acknowledge receipt of this letter by signing the
enclosed copy and return it to my attention.
BB-1
Sincerely,
-----------------------------
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Option Holder's Acknowledgment
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Date:
-----------------------------
BB-2
EXHIBIT CC
INITIAL COMPANION HOLDERS
Burbank Empire Center Companion Loan
------------------------------------
Name: MONY Life Insurance Company
Address: c/o MONY Realty Capital, Inc.
00000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Radisson Companion Loan
-----------------------
Radisson B Note:
Name: MW1-2002 LLC
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Radisson C Note:
Name: I.L. Finance Company, LLC
Address: 0 Xxxxxxxxxx Xxxxxxxx, Xxxxx 00
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
TRW Companion Loan
------------------
Name: Capital Lease Funding, LLC
Address: 000 Xxxxxx Xxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. XxXxxxxx
CC-1
