EXECUTION COPY
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2004
---------------------------------
$1,067,021,986
Aggregate Initial Certificate Principal Balance
---------------------------------
Commercial Mortgage Pass-Through Certificates
Series 2004-PWR6
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TABLE OF CONTENTS
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SECTION PAGE
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms....................................................................................7
SECTION 1.02. General Interpretive Principles.................................................................68
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool............................................69
SECTION 1.04. Cross-Collateralized Mortgage Loans.............................................................70
SECTION 1.05. Incorporation of Preliminary Statement..........................................................71
ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF REMIC I REGULAR INTERESTS,
REMIC II REGULAR INTERESTS, REMIC III COMPONENTS, REMIC I
RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC III RESIDUAL INTEREST
AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.............................................................72
SECTION 2.02. Acceptance of Mortgage Assets by Trustee........................................................76
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage Loans
by the Pooled Mortgage Loan Sellers.............................................................78
SECTION 2.04. Representations and Warranties of the Depositor.................................................82
SECTION 2.05. Representations and Warranties of PAR as a Master Servicer......................................83
SECTION 2.06. Representations and Warranties of WFB as a Master Servicer......................................85
SECTION 2.07. Representations and Warranties of the Special Servicer..........................................86
SECTION 2.08. [Reserved]......................................................................................87
SECTION 2.09. Representations and Warranties of the Certificate Administrator.................................87
SECTION 2.10. Representations and Warranties of the Tax Administrator.........................................88
SECTION 2.11. Representations, Warranties and Covenants of the Trustee........................................89
SECTION 2.12. Representations and Warranties of the Fiscal Agent..............................................91
SECTION 2.13. Creation of REMIC I; Issuance of the REMIC I Regular Interests and the
REMIC I Residual Interest; Certain Matters Involving REMIC I....................................92
SECTION 2.14. Conveyance of the REMIC I Regular Interests; Acceptance of the
REMIC I Regular Interests by Trustee............................................................94
SECTION 2.15. Creation of REMIC II; Issuance of the REMIC II Regular Interests and the
REMIC II Residual Interest; Certain Matters Involving REMIC II..................................94
SECTION 2.16. Conveyance of the REMIC II Regular Interests; Acceptance of the
REMIC II Regular Interests by Trustee...........................................................95
SECTION 2.17. Creation of REMIC III; Issuance of the Regular Interest Certificates,
the REMIC III Components and the REMIC III Residual Interest;
Certain Matters Involving REMIC III.............................................................96
SECTION 2.18. Acceptance of Grantor Trusts; Issuance of the Class V and Class R Certificates..................98
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.............................................................................100
SECTION 3.02. Collection of Mortgage Loan Payments...........................................................103
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve Accounts.......106
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SECTION PAGE
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SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve Account,
Excess Liquidation Proceeds Account and Companion Note Custodial Accounts......................108
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the Distribution
Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account
and the Companion Note Custodial Account.......................................................113
SECTION 3.06. Investment of Funds in the Accounts............................................................124
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..................126
SECTION 3.08. Enforcement of Alienation Clauses..............................................................130
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.............................................133
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files................................................136
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances; Payment of Certain Expenses;
Obligations of the Trustee and the Fiscal Agent Regarding Back-up Servicing Advances...........137
SECTION 3.12. Property Inspections; Collection of Financial Statements.......................................144
SECTION 3.13. Annual Statement as to Compliance..............................................................145
SECTION 3.14. Reports by Independent Public Accountants......................................................146
SECTION 3.15. Access to Information..........................................................................146
SECTION 3.16. Title to Administered REO Property; REO Account................................................147
SECTION 3.17. Management of Administered REO Property........................................................149
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties; Sale of
Non-Trust- Serviced Pooled Mortgage Loan.......................................................151
SECTION 3.19. Additional Obligations of Master Servicers and Special Servicer................................156
SECTION 3.20. Modifications, Waivers, Amendments and Consents................................................159
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer
and Special Servicer; Record Keeping...........................................................163
SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing Agreement...................................164
SECTION 3.23. Controlling Class Representative...............................................................168
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative..............................169
SECTION 3.25. Certain Matters Regarding the Holder of the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan.................................................................................170
SECTION 3.26. [Reserved].....................................................................................174
SECTION 3.27. Replacement of Special Servicer................................................................174
SECTION 3.28. Application of Default Charges.................................................................175
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions..................................................................................178
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting..........................................188
SECTION 4.03. P&I Advances...................................................................................197
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses...............................200
SECTION 4.05. Calculations...................................................................................202
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates...............................................................................203
SECTION 5.02. Registration of Transfer and Exchange of Certificates..........................................203
SECTION 5.03. Book-Entry Certificates........................................................................210
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..............................................211
SECTION 5.05. Persons Deemed Owners..........................................................................211
SECTION 5.06. Certification by Certificate Owners............................................................211
SECTION 5.07. Appointment of Authenticating Agents...........................................................212
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SECTION PAGE
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicers and the Special Servicer......................213
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master
Servicer or the Special Servicer...............................................................213
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers and the Special Servicer........213
SECTION 6.04. Resignation of the Master Servicers and the Special Servicer...................................215
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicers
and the Special Servicer.......................................................................216
SECTION 6.06. Master Servicers and Special Servicer May Own Certificates.....................................216
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default..............................................................................217
SECTION 7.02. Trustee to Act; Appointment of Successor.......................................................221
SECTION 7.03. Notification to Certificateholders.............................................................222
SECTION 7.04. Waiver of Events of Default....................................................................222
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default...........................................222
ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR
AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate Administrator
and the Tax Administrator......................................................................223
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate Administrator
and the Tax Administrator......................................................................224
SECTION 8.03. The Trustee, the Fiscal Agent, the Certificate Administrator and the Tax
Administrator not Liable for Validity or Sufficiency of Certificates or Mortgage Loans.........226
SECTION 8.04. The Trustee, the Fiscal Agent, the Certificate Administrator and the Tax
Administrator May Own Certificates.............................................................226
SECTION 8.05. Fees and Expenses of the Trustee, the Certificate Administrator and the
Tax Administrator; Indemnification of and by the Trustee, the Certificate
Administrator, the Tax Administrator and the Fiscal Agent......................................227
SECTION 8.06. Eligibility Requirements for the Trustee, the Certificate Administrator
and the Tax Administrator......................................................................228
SECTION 8.07. Resignation and Removal of the Trustee, the Certificate Administrator
and the Tax Administrator......................................................................229
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax Administrator.............................230
SECTION 8.09. Merger or Consolidation of the Trustee, the Certificate Administrator
or the Tax Administrator.......................................................................231
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................................................231
SECTION 8.11. Appointment of Custodians......................................................................232
SECTION 8.12. Access to Certain Information..................................................................232
SECTION 8.13. Appointment of Fiscal Agent....................................................................234
SECTION 8.14. Advance Security Arrangement...................................................................235
SECTION 8.15. Exchange Act Reporting.........................................................................235
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled Mortgage Loans........................238
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SECTION PAGE
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SECTION 9.02. Additional Termination Requirements............................................................240
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.............................................................................242
SECTION 10.02. The Depositor, the Master Servicers, the Special Servicer and the
Fiscal Agent to Cooperate with the Tax Administrator...........................................244
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment......................................................................................246
SECTION 11.02. Recordation of Agreement; Counterparts.........................................................247
SECTION 11.03. Limitation on Rights of Certificateholders.....................................................248
SECTION 11.04. Governing Law..................................................................................248
SECTION 11.05. Notices........................................................................................248
SECTION 11.06. Severability of Provisions.....................................................................249
SECTION 11.07. Successors and Assigns; Beneficiaries..........................................................249
SECTION 11.08. Article and Section Headings...................................................................249
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor......................................250
SECTION 11.10. Notices to Controlling Class Representative....................................................251
SECTION 11.11. Complete Agreement.............................................................................251
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EXHIBITS
EXHIBIT A-1 Form of Certificate (other than Class R and Class V Certificates)
EXHIBIT A-2 Form of Class R Certificate
EXHIBIT A-3 Form of Class V Certificate
EXHIBIT B Letters of Representations Among Depositor, Trustee and Initial Depositary
EXHIBIT C-1 Form of Master Servicer Request for Release
EXHIBIT C-2 Form of Special Servicer Request for Release
EXHIBIT D Form of Certificate Administrator Report
EXHIBIT E-1 Form of ARCap Interest on Advance Reconciliation Report
EXHIBIT E-2 Form of ARCap Mortgage Loans Delinquent Report
EXHIBIT X-0 Xxxx xx XXXxx X&X Advances as of Remittance Date Report
EXHIBIT E-4 Form of Realized Loss Report
EXHIBIT E-5 ARCap Naming Convention for Electronic File Delivery
EXHIBIT E-6 Controlling Class Certificateholder's Reports Checklist
EXHIBIT E-7 Form of Monthly Additional Report on Recoveries and Reimbursements
EXHIBIT F-1 Form of Transferor Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Certain Transfers of Interests in Rule 144A Global Certificates
EXHIBIT F-2D Form of Transferee Certificate for Certain Transfers of Interests in Regulation S Global Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates and Non-Investment
Grade Certificates Held in Physical Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA (Non-Registered Certificates Held in Book-Entry
Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of the Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Form of Power of Attorney by Trustee
EXHIBIT M [Reserved]
EXHIBIT N Form of Final Certification of Trustee
EXHIBIT O Form of Defeasance Certification
EXHIBIT P Copy of Primary Servicer Undertaking to Indemnify
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SCHEDULES
SCHEDULE I-A Schedule of PMCF Pooled Mortgage Loans
SCHEDULE I-B Schedule of BSCMI Pooled Mortgage Loans
SCHEDULE I-C Schedule of WFB Pooled Mortgage Loans
SCHEDULE I-D Schedule of Nationwide Pooled Mortgage Loans
SCHEDULE II Schedule of Exceptions to Mortgage File Delivery (under Section 2.02(a))
SCHEDULE III Schedule of Designated Sub-Servicers
SCHEDULE IV Reference Rates
SCHEDULE V Borrower Third-Party Beneficiaries (under Section 2.03)
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This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of December 1, 2004, among BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES II INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a Master
Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Master Servicer, ARCAP
SERVICING, INC., as Special Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Certificate Administrator and as Tax Administrator, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued hereunder in
multiple Classes, which in the aggregate will evidence the entire beneficial
ownership interest in the Trust to be created hereunder.
REMIC I
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the Pooled Mortgage Loans (exclusive of certain amounts
payable thereon) and certain other assets as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I".
The Class R Certificates will represent ownership of (among other things) the
sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions under federal income tax law. The Latest Possible Maturity Date for
each REMIC I Regular Interest is the Rated Final Distribution Date. None of the
REMIC I Regular Interests will be certificated.
REMIC II
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting 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 Certificates will represent ownership of (among other
things) the sole class of "residual interests" in REMIC II for purposes of the
REMIC Provisions under federal income tax law. The following table sets forth
the designation, the REMIC II Remittance Rate and the initial Uncertificated
Principal Balance for each of the REMIC II Regular Interests. The Latest
Possible Maturity Date for each REMIC II Regular Interest is the Rated Final
Distribution Date. None of the REMIC II Regular Interests will be certificated.
REMIC II Initial Uncertificated
Designation Remittance Rate Principal Balance
----------- --------------- -----------------
A-1-1 Variable (1) $ 12,825,000
A-1-2 Variable (1) $ 52,485,000
A-1-3 Variable (1) $ 1,485,000
A-2 Variable (1) $ 47,691,000
A-3-1 Variable (1) $ 4,697,000
A-3-2 Variable (1) $ 41,185,000
A-4-1 Variable (1) $ 13,961,000
A-4-2 Variable (1) $ 68,338,000
A-4-3 Variable (1) $ 43,119,000
A-5-1 Variable (1) $ 4,985,000
A-5-2 Variable (1) $ 50,795,000
A-6-1 Variable (1) $ 73,708,000
A-6-2 Variable (1) $ 34,697,000
A-6-3 Variable (1) $ 403,646,000
A-J Variable (1) $ 69,357,000
B-1 Variable (1) $ 9,410,000
B-2 Variable (1) $ 23,934,000
C-1 Variable (1) $ 8,380,000
C-2 Variable (1) $ 2,290,000
D-1 Variable (1) $ 9,889,000
D-2 Variable (1) $ 6,117,000
E-1 Variable (1) $ 4,723,000
E-2 Variable (1) $ 5,947,000
F-1 Variable (1) $ 1,793,000
F-2 Variable (1) $ 12,878,000
G Variable (1) $ 9,337,000
H-1 Variable (1) $ 6,582,000
H-2 Variable (1) $ 8,089,000
J Variable (1) $ 2,668,000
K Variable (1) $ 4,001,000
L Variable (1) $ 5,335,000
M Variable (1) $ 5,335,000
N Variable (1) $ 4,002,000
P Variable (1) $ 1,333,000
Q Variable (1) $ 12,004,986
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(1) The REMIC II Remittance Rate for each REMIC II Regular Interest shall
be a variable rate per annum calculated in accordance with the
definition of "REMIC II Remittance Rate".
REMIC III
As provided herein, the Trustee will elect to treat the segregated pool
of assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R Certificates will evidence ownership of (among other
things) the sole class of "residual interests" in REMIC III for purposes of the
REMIC Provisions under federal income tax law.
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Class Designations of the Regular Interest Certificates
The following table irrevocably sets forth the Class designation,
Pass-Through Rate and initial Class Principal Balance for each Class of the
Regular Interest Certificates.
Class Initial Class
Designation Pass-Through Rate Principal Balance
----------- ----------------- -----------------
Class A-1 3.688% per annum $ 66,795,000
Class A-2 4.133% per annum $ 47,691,000
Class A-3 4.355% per annum $ 45,882,000
Class A-4 4.521% per annum $ 125,418,000
Class A-5 4.705% per annum $ 55,780,000
Class A-6 4.825% per annum $ 512,051,000
Class A-J 4.868% per annum $ 69,357,000
Class B Variable (1) $ 33,344,000
Class C Variable (1) $ 10,670,000
Class D Variable (1) $ 16,006,000
Class E Variable (1) $ 10,670,000
Class F Variable (2) $ 14,671,000
Class G Variable (2) $ 9,337,000
Class H Variable (2) $ 14,671,000
Class J Variable (1) $ 2,668,000
Class K Variable (1) $ 4,001,000
Class L Variable (1) $ 5,335,000
Class M Variable (1) $ 5,335,000
Class N Variable (1) $ 4,002,000
Class P Variable (1) $ 1,333,000
Class Q Variable (1) $ 12,004,986
Class X-1 Variable (2) (3)
Class X-2 Variable (2) (4)
----------------------
(1) The respective Pass-Through Rates for the Class B, Class C, Class D,
Class E, Class J, Class K, Class L, Class M, Class N, Class P and Class
Q Certificates will, in the case of each of those Classes, be a rate
per annum equal to the lesser of a fixed rate per annum (equal to
4.945%, 5.119%, 5.279%, 5.406%, 4.672%, 4.672%, 4.672%, 4.672%, 4.672%,
4.672% and 4.672%, respectively) and a variable rate, all as calculated
in accordance with the definition of "Pass-Through Rate".
(2) The respective Pass-Through Rates for the Class X-1, Class X-2, Class
F, Class G and Class H Certificates will, in the case of each of those
Classes, be a variable rate per annum calculated in accordance with the
definition of "Pass-Through Rate".
(3) The Class X-1 Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal.
The Class X-1 Certificates will have a Class Notional Amount which will
be equal to the aggregate of the Component Notional Amounts of such
Class' REMIC III Components from time to time. As more specifically
provided herein, interest in respect of such Class of Certificates will
consist of the aggregate amount of interest accrued on the respective
Component Notional Amounts of such Class' REMIC III Components from
time to time.
(4) The Class X-2 Certificates will not have a Class Principal Balance and
will not entitle their Holders to receive distributions of principal.
As more specifically provided herein, the Class X-2 Certificates will
have a Class Notional Amount that from time to time will be equal to
the aggregate of the Component Notional Amounts of one or more of such
Class' REMIC III Components from time to time. As more specifically
provided herein, interest in
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respect of such Class of Certificates will consist of the aggregate
amount of interest accrued from time to time on the respective
Component Notional Amounts of one or more of such Class' REMIC III
Components.
Designations of the REMIC III Components
The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably assigned the alphanumeric designation set forth under the column
heading "REMIC III Component of Class X-1 Certificates" in the table that
appears under "Corresponding REMIC II Regular Interests". The REMIC III
Components of the Class X-2 Certificates are hereby irrevocably assigned the
alphanumeric designation set forth under the column heading "REMIC III Component
of Class X-2 Certificates" in the table that appears under "Corresponding REMIC
II Regular Interests".
Corresponding REMIC II Regular Interests
The following table irrevocably sets forth, with respect to each REMIC
II Regular Interest, the Class of Certificates, REMIC III Component of the Class
X-1 Certificates and the REMIC III Component of the Class X-2 Certificates for
which such REMIC II Regular Interest constitutes a Corresponding REMIC II
Regular Interest:
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Class X-2
Termination Date
REMIC III REMIC III for REMIC III
REMIC II Class of Component of Class Component of Class Component of Class
Regular Interest Certificates X-1 Certificates X-2 Certificates X-2 Certificates
---------------- ------------ ------------------ ------------------ ------------------
X-0-0 X-0 X0-X-0-0 Not Applicable Not Applicable
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0 X-0 X0-X-0 X0-X-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 0000
X-0-0 X-0 X0-X-0-0 X0-X-0-0 December 2012
X-X X-X X0-X-X X0-X-X Xxxxxxxx 0000
X-0 B X1-B-1 X2-B-1 December 0000
X-0 X X0-X-0 X0-X-0 December 2012
C-1 C X1-C-1 X2-C-1 December 2010
C-2 C X1-C-2 X2-C-2 December 2011
X-0 X X0-X-0 X0-X-0 Xxxxxxxx 0000
X-0 D X1-D-2 X2-D-2 December 0000
X-0 X X0-X-0 X0-X-0 December 0000
X-0 X X0-X-0 X0-X-0 December 2009
F-1 F X1-F-1 X2-F-1 December 2007
F-2 F X1-F-2 X2-F-2 December 2008
G G X1-G X2-G December 2007
H-1 H X1-H-1 X2-H-1 December 2006
H-2 H X1-H-2 X2-H-2 December 2007
J J X1-J X2-J December 2006
K K X1-K X2-K December 2006
L L X1-L X2-L December 2006
M M X1-M Not Applicable Not Applicable
N N X1-N Not Applicable Not Applicable
P P X1-P Not Applicable Not Applicable
Q Q X1-Q Not Applicable Not Applicable
For federal income tax purposes, each Class of the Regular Interest
Certificates will be designated as a separate "regular interest" in REMIC III.
The Latest Possible Maturity Date for each Class of Regular Interest
Certificates is the Rated Final Distribution Date.
The Initial Pool Balance will be $1,067,021,986, and the initial
aggregate Uncertificated Principal Balance of the REMIC I Regular Interests, the
initial aggregate Uncertificated Principal Balance of the REMIC II Regular
Interests and the initial aggregate Class Principal Balance of the respective
Classes of Regular Interest Certificates (other than the Class X Certificates)
will, in each case, be $1,067,021,986.
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As described below, there exist two Pooled Mortgage Loans that are part
of split loan structures comprising such Pooled Mortgage Loan and one or more
other loans that, together with the respective Pooled Mortgage Loan, are secured
by the same Mortgage encumbering the related Mortgaged Properties, which other
loans are, in each case, pari passu in right of payment to the related Pooled
Mortgage Loan.
The 11 Penn Plaza Pooled Mortgage Loan is part of a split loan
structure comprising the 11 Penn Plaza Pooled Mortgage Loan and the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan. The relative rights of the holder of
the 11 Penn Plaza Pooled Mortgage Loan and the holder of the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan are set forth in the 11 Penn Plaza
Intercreditor Agreement, which provides that the entire 00 Xxxx Xxxxx Loan Group
is to be serviced and administered in accordance with this Agreement by the
Trustee, the Fiscal Agent, the Certificate Administrator, the applicable Master
Servicer and the Special Servicer.
The Lincoln Square Pooled Mortgage Loan is part of a split loan
structure comprising the Lincoln Square Pooled Mortgage Loan and the Lincoln
Square Non-Pooled Pari Passu Companion Loans. The relative rights of the holder
of the Lincoln Square Pooled Mortgage Loan and the holders of the Lincoln Square
Non-Pooled Pari Passu Companion Loans are set forth in the Series 2004-PWR4 PSA
and/or the Lincoln Square Intercreditor Agreement, which provide that the entire
Lincoln Square Loan Group is to be serviced and administered in accordance with
the Series 0000-XXX0 XXX.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, the Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee and the Fiscal Agent hereby
agree, in each case, as follows:
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ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES; CERTAIN CALCULATIONS IN
RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"11 Penn Plaza Intercreditor Agreement": That certain Intercreditor
Agreement, dated as of December 21, 2004, by and among PMCF, as lead lender, and
PMCF, as co-lender.
"11 Penn Plaza Loan Group": The 11 Penn Plaza Pooled Mortgage Loan and
the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, together.
"11 Penn Plaza Mortgaged Property": The Mortgaged Property identified
on the Pooled Mortgage Loan Schedule as "11 Penn Plaza".
"11 Penn Plaza Non-Pooled Pari Passu Companion Loan": The mortgage
loan, with an original principal balance in the amount of $95,000,000, that is
secured by the same Mortgage encumbering the 11 Penn Plaza Mortgaged Property as
the 11 Penn Plaza Pooled Mortgage Loan, is pari passu in right of payment with
the 11 Penn Plaza Pooled Mortgage Loan and is held as of the Closing Date by
PMCF. The 11 Penn Plaza Non-Pooled Pari Passu Companion Loan is not a "Pooled
Mortgage Loan" or part of the Trust Fund, any REMIC Pool or either Grantor Trust
Pool.
"11 Penn Plaza Non-Pooled Pari Passu Companion Loan Noteholder": Any
holder of the promissory note evidencing the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan.
"11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities": For so
long as the 11 Penn Plaza Pooled Mortgage Loan (or the related REO Mortgage
Loan) is part of the Mortgage Pool, any class of securities backed by the 11
Penn Plaza Non-Pooled Pari Passu Companion Loan.
"11 Penn Plaza Pooled Mortgage Loan": The Pooled Mortgage Loan secured
by the 11 Penn Plaza Mortgaged Property.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan": A Mortgage Loan that accrues interest on a
30/360 Basis.
"ABN AMRO": ABN AMRO Bank N.V. or its successor in interest.
"Accrued Certificate Interest": The interest accrued from time to time
with respect to any Class of Regular Interest Certificates, the amount of which
interest shall equal: (a) in the case of any Class of Principal Balance
Certificates for any Interest Accrual Period, one-twelfth of the product of (i)
the Pass-Through Rate applicable to such Class of Certificates for such Interest
Accrual Period, multiplied by (ii) the Class Principal Balance of such Class of
Certificates outstanding immediately prior to the related Distribution Date; and
(b) in the case of either Class of Interest Only Certificates for any Interest
Accrual Period, the aggregate amount of Accrued Component Interest for all of
such Class' REMIC III Components for such Interest Accrual Period.
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"Accrued Component Interest": The interest accrued from time to time
with respect to any REMIC III Component of either Class of Interest Only
Certificates, the amount of which interest shall equal, for any Interest Accrual
Period, one-twelfth of the product of (i) either (A) in the case of a REMIC III
Component of the Class X-1 Certificates, the Class X-1 Strip Rate applicable to
such REMIC III Component for such Interest Accrual Period, or (B) in the case of
a REMIC III Component of the Class X-2 Certificates, the Class X-2 Strip Rate
applicable to such REMIC III Component for such Interest Accrual Period,
multiplied by (ii) the Component Notional Amount of such REMIC III Component
outstanding immediately prior to the related Distribution Date.
"Actual/360 Basis": The accrual of interest calculated on the basis of
the actual number of days elapsed during any calendar month (or other applicable
recurring accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": A Mortgage Loan that accrues interest on an
Actual/360 Basis.
"Additional Collateral": Any non-real property collateral (including
any Letter of Credit and Reserve Funds) pledged and/or delivered by or on behalf
of the related Borrower and held by the related Mortgagee to secure payment on
any Mortgage Loan.
"Additional Master Servicing Compensation": As defined in Section
3.11(b).
"Additional Special Servicing Compensation": As defined in Section
3.11(d).
"Additional Trust Fund Expense": Any expense incurred or shortfall
experienced with respect to the Trust Fund and not otherwise included in the
calculation of a Realized Loss, that would result in the Holders of the
Certificates (other than the Class R and Class V Certificates) receiving less
than the full amount of principal and/or Distributable Certificate Interest to
which they are entitled on any Distribution Date.
"Additional Yield Amount": As defined in Section 4.01(b).
"Administered REO Property": Any REO Property other than any REO
Property related to the Non-Trust-Serviced Pooled Mortgage Loan.
"Administrative Fee Rate": With respect to each Pooled Mortgage Loan
(or any successor REO Pooled Mortgage Loan with respect thereto), a rate per
annum equal to the sum of (i) the Servicer Report Administrator Fee Rate; (ii)
the Trustee Fee Rate, (iii) the related Master Servicing Fee Rate and (iv) if
(and only if) such Pooled Mortgage Loan constitutes the Lincoln Square Pooled
Mortgage Loan, the rate per annum equal to the rate per annum at which
comparable administrative fees payable under the applicable Non-Trust Servicing
Agreement accrue (which rate is 0.03%).
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": The interest accrued on any Advance (other than any
Unliquidated Advance) at the Reimbursement Rate, which is payable to the party
hereto that made that Advance, all in accordance with Section 3.11(g) or Section
4.03(d), as applicable.
"Adverse Grantor Trust Event": Either: (i) any impairment of the status
of any Grantor Trust Pool as a Grantor Trust; or (ii) the imposition of a tax
upon any Grantor Trust Pool or any of its assets or transactions.
"Adverse Rating Event": With respect to any Class of Rated Certificates
and each Rating Agency that has assigned a rating thereto, as of any date of
determination, the qualification, downgrade or withdrawal of the rating then
assigned to such Class of Rated Certificates by such Rating Agency (or the
placing of such Class of Rated Certificates on "negative credit watch" status in
contemplation of any such action with respect thereto) and, solely with respect
to matters affecting the 11 Penn Plaza Loan Group and with respect to any class
of 11 Penn Plaza Non-Pooled Pari
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Passu Companion Loan Securities and each Rating Agency that has assigned a
rating thereto, as of any date of determination, the qualification, downgrade or
withdrawal of the rating then assigned to such class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities by such Rating Agency (or the placing of
such class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities on
"negative credit watch" status in contemplation of any such action with respect
thereto).
"Adverse REMIC Event": Either: (i) any impairment of the status of any
REMIC Pool as a REMIC; or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon any REMIC Pool or any of its assets or transactions
(including the tax on prohibited transactions as defined in Section 860F(a)(2)
of the Code, the tax on contributions under Section 860G(d) of the Code and the
tax on income from foreclosure property under Section 860G(c) of the Code).
"Affected Loan(s)": As defined in Section 2.03(b).
"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, as it may be
amended, modified, supplemented or restated following the Closing Date.
"Annual Accountants' Report": As defined in Section 3.14.
"Annual Performance Certification": As defined in Section 3.13.
"Anticipated Repayment Date": With respect to any ARD Mortgage Loan,
the date specified in the related Mortgage Note, as of which Post-ARD Additional
Interest shall begin to accrue on such Mortgage Loan, which date is prior to the
Stated Maturity Date for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the Applicable State
Law shall be (1) the laws of the State of New York; (2) to the extent brought to
the attention of the Tax Administrator (by either (i) an Opinion of Counsel
delivered to it or (ii) written notice from the appropriate taxing authority as
to the applicability of such state law), (a) the laws of the states in which the
Corporate Trust Offices of the Certificate Administrator and the Trustee and the
Primary Servicing Offices of the Master Servicers and the Special Servicer are
located and (b) the laws of the states in which any Mortgage Loan Documents are
held and/or any REO Properties are located; and (3) such other state or local
law as to which the Tax Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO Property as
to which an appraisal is required to be performed pursuant to the terms of this
Agreement, a narrative appraisal complying with USPAP (or, in the case of a
Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the Special
Servicer's option, either a limited appraisal and a summary report or an
internal valuation prepared by the Special Servicer) that (i) indicates the
"market value" of the subject property (within the meaning of 12 CFR ss.
225.62(g)) and (ii) is conducted by a Qualified Appraiser (except that, in the
case of a Pooled Mortgage Loan or an REO Pooled Mortgage Loan with a Stated
Principal Balance as of the date of such appraisal of $2,000,000 or less, the
appraiser may be an employee of the Special Servicer, which employee need not be
a Qualified Appraiser but shall have experience in commercial and/or multifamily
properties, as the case may be, and possess sufficient knowledge to value such a
property).
"Appraisal Reduction Amount": With respect to any Serviced Mortgage
Loan that is a Required Appraisal Loan, an amount (calculated initially as of
the Determination Date immediately following the later of the date
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on which the subject Pooled Mortgage Loan became a Required Appraisal Loan and
the date on which the applicable Appraisal was obtained) equal to the excess, if
any, of:
(a) the sum of, without duplication, (i) the Stated Principal Balance
of such Required Appraisal Loan, (ii) to the extent not previously advanced
by or on behalf of the applicable Master Servicer, the Trustee or the Fiscal
Agent, all unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to the date of calculation (exclusive of any portion
thereof that represents Post-ARD Additional Interest and/or Default
Interest), (iii) all accrued and unpaid Special Servicing Fees in respect of
such Required Appraisal Loan, (iv) all related unreimbursed Advances
(together with Unliquidated Advances) made by or on behalf of (plus all
accrued and unpaid interest on such Advances (other than Unliquidated
Advances)) payable to) the applicable Master Servicer, the Special Servicer,
the Trustee and/or the Fiscal Agent with respect to such Required Appraisal
Loan, (v) any other outstanding Additional Trust Fund Expenses with respect
to such Required Appraisal Loan, and (vi) all currently due and unpaid real
estate taxes and assessments, insurance premiums and, if applicable, ground
rents, and any unfunded improvement or other applicable reserves, in respect
of the related Mortgaged Property or REO Property, as the case may be (in
each case, net of any amounts escrowed with the applicable Master Servicer
or the Special Servicer for such items); over
(b) an amount equal to the sum of: (a) the excess, if any, of (i) 90%
of the Appraised Value of the related Mortgaged Property (or REO Property)
as determined by the most recent Appraisal or any letter update of such
Appraisal, over (ii) the amount of any obligations secured by liens on such
Mortgaged Property (or REO Property) that are prior to the lien of the
related Required Appraisal Loan; plus (b) the amount of any Escrow Payments
and/or Reserve Funds held by the applicable Master Servicer or the Special
Servicer with respect to such Required Appraisal Loan, the related Mortgaged
Property or any related REO Property that (i) are not being held in respect
of any real estate taxes and assessments, insurance premiums or, if
applicable, ground rents, (ii) are not otherwise scheduled to be applied or
utilized (except to pay debt service on such Required Appraisal Loan) within
the twelve-month period following the date of determination and (iii) may be
applied towards the reduction of the principal balance of such Required
Appraisal Loan; plus (c) the amount of any Letter of Credit constituting
additional security for such Required Appraisal Loan and that may be applied
towards the reduction of the principal balance of such Required Appraisal
Loan.
Notwithstanding the foregoing, if (i) any Mortgage Loan becomes a
Required Appraisal Loan, (ii) either (A) no Appraisal or update thereof has been
obtained or conducted, as applicable, in accordance with Section 3.19(a), with
respect to the related Mortgaged Property or REO Property, as the case may be,
during the 12-month period prior to the date such Mortgage Loan became a
Required Appraisal Loan or (B) there shall have occurred since the date of the
most recent Appraisal or update thereof a material change in the circumstances
surrounding the related Mortgaged Property or REO Property, as the case may be,
that would, in the Special Servicer's reasonable judgment, materially affect the
value of the related Mortgaged Property or REO Property, as the case may be, and
(iii) no new Appraisal is obtained or conducted, as applicable, in accordance
with Section 3.19(a), within 60 days after such Mortgage Loan became a Required
Appraisal Loan, then (x) until such new Appraisal is obtained or conducted, as
applicable, in accordance with Section 3.19(a), the Appraisal Reduction Amount
shall equal 25% of the Stated Principal Balance of such Required Appraisal Loan,
and (y) upon receipt or performance, as applicable, in accordance with Section
3.19(a), of such Appraisal or update thereof by the Special Servicer, the
Appraisal Reduction Amount for such Required Appraisal Loan shall be
recalculated in accordance with the preceding sentence of this definition.
In connection with the foregoing, each Cross-Collateralized Mortgage
Loan that is part of a single Cross-Collateralized Group shall be treated
separately (in each case as a single Mortgage Loan without regard to the
cross-collateralization and cross-default provisions) for purposes of
calculating an Appraisal Reduction Amount. Notwithstanding any contrary
provision set forth above, for purposes of the proviso to Section 4.03(b) and
the 11 Penn Plaza Pooled Mortgage Loan, any Appraisal Reduction Amounts will be
calculated with respect to the entire indebtedness evidenced by the 11 Penn
Plaza Pooled Mortgage Loan and the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan as if they were a single "Serviced Mortgage Loan" and allocated to such
Mortgage Loans up to the aggregate of, and on a
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pro rata basis in accordance with, the respective outstanding principal balances
of such Mortgage Loans, and the amount so allocated to either such Mortgage Loan
shall constitute the "Appraisal Reduction Amount" for such Mortgage Loan.
An Appraisal Reduction Amount with respect to any Pooled Mortgage Loan
will be reduced to zero as of the date on which all Servicing Transfer Events
have ceased to exist with respect to such Mortgage Loan and at least 90 days
have passed following the occurrence of the most recent Appraisal Trigger Event.
No Appraisal Reduction Amount will exist as to any Pooled Mortgage Loan after it
has been paid in full or it (or the REO Property) has been liquidated or
otherwise disposed of.
Notwithstanding the foregoing, with respect to the Non-Trust-Serviced
Pooled Mortgage Loan, the Appraisal Reduction Amount shall be the "appraisal
reduction amount" calculated by the Non-Trust Master Servicer pursuant to the
Non-Trust Servicing Agreement and the parties hereto shall be entitled to rely
on such calculations as reported to them by the Non-Trust Master Servicer.
"Appraisal Trigger Event": As defined in Section 3.19(a).
"Appraised Value": With respect to each Mortgaged Property or REO
Property, the appraised value thereof based upon the most recent Appraisal
obtained or conducted, as appropriate, pursuant to this Agreement.
"ARCap Interest on Advance Reconciliation Report": The report in the
form of and containing the information provided for on Exhibit E-1 hereto. The
ARCap Interest on Advance Reconciliation Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARCap Mortgage Loans Delinquent Report": The report in the form of and
containing the information provided for on Exhibit E-2 hereto. The ARCap
Mortgage Loans Delinquent Report shall be in Excel format or such other format
as is reasonably acceptable to the Master Servicers, the Certificate
Administrator and the Controlling Class Representative.
"ARCap Naming Convention for Electronic File Delivery": The naming
convention for electronic file delivery set forth on Exhibit X-0 xxxxxx.
"XXXxx X&X Advances as of Remittance Date Report": The report in the
form of and containing the information provided for on Exhibit E-3 hereto. The
ARCap P&I Advances as of Remittance Date Report shall be in Excel format or such
other format as is reasonably acceptable to the Master Servicers, the
Certificate Administrator and the Controlling Class Representative.
"ARD Mortgage Loan": A Mortgage Loan that provides for the accrual of
Post-ARD Additional Interest thereon if such Mortgage Loan is not paid in full
on or prior to its Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.24(a).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the related Borrower in connection with the origination of the
related Mortgage Loan(s), as such assignment may be amended, modified, renewed
or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment": With respect to (a) any Pooled Mortgage Loan
that is a Balloon Mortgage Loan delinquent in respect of its Balloon Payment
beyond the Determination Date immediately following its scheduled maturity date
(as such date may be extended in connection with a bankruptcy, insolvency or
similar proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the applicable Master
Servicer or the Special Servicer), for that scheduled maturity date and for each
subsequent Due Date as of which such
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Pooled Mortgage Loan remains outstanding and part of the Trust Fund, the
scheduled monthly payment of principal and/or interest deemed to be due with
respect to such Pooled Mortgage Loan on such Due Date equal to the amount
(exclusive of Default Interest) that would have been due in respect thereof on
such Due Date if such Pooled Mortgage Loan had been required to continue to
accrue interest in accordance with its terms, and to pay principal in accordance
with the amortization schedule (if any), in effect immediately prior to, and
without regard to the occurrence of, such maturity date; and (b) any REO Pooled
Mortgage Loan, for any Due Date as of which the related REO Property (or, in the
case of any REO Pooled Mortgage Loan that is a successor to the
Non-Trust-Serviced Pooled Mortgage Loan, any interest in the related REO
Property) remains part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Mortgage Loan
described in clause (b) of this definition, the Assumed Monthly Payment) that
was due (or deemed due) with respect to the related Pooled Mortgage Loan on the
last Due Date prior to its becoming an REO Pooled Mortgage Loan.
"ASTM": The American Society for Testing and Materials.
"Authenticating Agent": Any authenticating agent appointed pursuant to
Section 5.07 (or, in the absence of any such appointment, the Certificate
Administrator).
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to (a) the sum of (i) all amounts on deposit in the Distribution
Account as of 11:00 a.m., New York City time, on such Distribution Date, (ii) to
the extent not included in the amount described in clause (a)(i) of this
definition, any P&I Advances and/or Compensating Interest Payments that were
made hereunder in respect of such Distribution Date, (iii) to the extent not
included in the amount described in clause (a)(i) of this definition, the
aggregate amount transferred (pursuant to Section 3.05(d)) from the Excess
Liquidation Proceeds Account to the Distribution Account in respect of such
Distribution Date, and (iv) to the extent not included in the amount described
in clause (a)(i) of this definition, if such Distribution Date occurs during the
month of March of 2005 or any year thereafter, the aggregate of the Interest
Reserve Amounts with respect to the Interest Reserve Loans transferred from the
Interest Reserve Account to the Distribution Account during such month of March
for distribution on such Distribution Date, net of (b) any portion of the
amounts described in clause (a) of this definition that represents one or more
of the following: (i) collected Monthly Payments that are due on a Due Date
following the end of the related Collection Period (or, in the case of any
Pooled Mortgage Loan for which the Due Date is on the 5th day of each month,
that were due on a Due Date occurring in the calendar month next succeeding the
month in which the related Collection Period ends), (ii) any payments of
principal (including Principal Prepayments) and interest, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds Received by the Trust after the
end of the related Collection Period, (iii) any Prepayment Premiums, Yield
Maintenance Charges and/or Post-ARD Additional Interest, (iv) any amounts
payable or reimbursable to any Person from the Distribution Account pursuant to
clauses (iii) through (viii) of Section 3.05(b), (v) if such Distribution Date
occurs during the month of February of 2005 or any year thereafter or during the
month of January of 2005 or any year thereafter that is not a leap year, the
aggregate of the Interest Reserve Amounts with respect to the Interest Reserve
Loans to be withdrawn (pursuant to Section 3.04(c) and Section 3.05(b)(ii)) from
the Distribution Account and deposited into the Interest Reserve Account during
such month of February or such month of January, as the case may be, and held
for future distribution, and (vi) any amounts deposited in the Distribution
Account in error; provided that the Available Distribution Amount for the Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii)
and (b)(v) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms
or by virtue of any modification entered into as of the Closing Date (or, in the
case of a Replacement Pooled Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, the Monthly
Payment due on its Stated Maturity Date is at least 5% of the original principal
balance of such Mortgage Loan.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Stated Maturity Date
of such Mortgage Loan.
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"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated November 23, 2004
relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depositary or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered Certificate
that constitutes a Book-Entry Certificate.
"Borrower": Individually and collectively, as the context may require,
the obligor or obligors under a Mortgage Loan, including any Person that has not
signed the related Mortgage Note but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure such Mortgage Loan.
"Breach": As defined in Section 2.03(a).
"BSCMI": Bear Xxxxxxx Commercial Mortgage, Inc., or its successor in
interest.
"BSCMI Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either
an Original BSCMI Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan
that was delivered under the BSCMI Pooled Mortgage Loan Purchase Agreement in
substitution for an Original BSCMI Pooled Mortgage Loan.
"BSCMI Pooled Mortgage Loan Purchase Agreement": That certain Mortgage
Loan Purchase and Sale Agreement dated as of December 8, 2004, between BSCMI as
seller and the Depositor as purchaser.
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in California, New York or Illinois or any of the
jurisdictions in which the respective Primary Servicing Offices of the Master
Servicers and the Special Servicer and the Corporate Trust Offices of the
Certificate Administrator and the Trustee 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 Depositor's 2004-PWR6 Commercial Mortgage
Pass-Through Certificates, as executed by the Certificate Administrator and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Administrator": WFB, in its capacity as certificate
administrator hereunder, or any successor certificate administrator appointed as
herein provided.
"Certificate Administrator Fee": That portion of the Trustee Fee
payable to the Certificate Administrator in an amount agreed to by the Trustee
and the Certificate Administrator.
"Certificate Administrator Report": As defined in Section 4.02(a).
"Certificate Factor": With respect to any Class of Regular Interest
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to eight places, the numerator of which is the related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register, provided, however, that: (i) neither
a Disqualified Organization nor a Non-United States Tax Person shall be a
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"Holder" of, or a "Certificateholder" with respect to, a Class R Certificate for
any purpose hereof; and (ii) solely for purposes of giving any consent,
approval, direction or waiver pursuant to this Agreement that specifically
relates to the rights, duties and/or obligations hereunder of any of the
Depositor, a Master Servicer, the Special Servicer, the Tax Administrator, the
Certificate Administrator, the Trustee or the Fiscal Agent in its respective
capacity as such (other than any consent, approval or waiver contemplated by
Section 3.24), any Certificate registered in the name of such party or in the
name of any Affiliate thereof shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that specifically relates to such
party has been obtained. The Certificate Registrar shall be entitled to request
and conclusively rely upon a certificate of the Depositor, a 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
"Certificateholders" or "Holders" shall reflect the rights of Certificate Owners
only insofar as they may indirectly exercise such rights through the Depository
and the Depository Participants (except as otherwise specified herein), it being
herein acknowledged and agreed that the parties hereto shall be required to
recognize as a "Certificateholder" or "Holder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Interest Only
Certificate, as of any date of determination, the then notional principal amount
on which such Certificate accrues interest, equal to the product of (a) the then
Certificate Factor for the Class of Interest Only Certificates to which such
Certificate belongs, multiplied by (b) the amount specified on the face of such
Certificate as the initial Certificate Notional Amount thereof.
"Certificate Owner": With respect to any Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depositary or on the books of a Depositary Participant or on the books of
an indirect participating brokerage firm for which a Depositary Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal Balance
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the then Certificate
Factor for the Class of Principal Balance Certificates to which such Certificate
belongs, multiplied by (b) the amount specified on the face of such Certificate
as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certification Parties": As defined in Section 8.15(b).
"Certifying Person": As defined in Section 8.15(b).
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric class designation and having the same payment terms.
"Class A Principal Distribution Cross-Over Date": The first
Distribution Date as of the commencement of business on which (i) two or more
Classes of the Class A Senior Certificates remain outstanding and (ii) the
aggregate of the Class Principal Balances of the Class A-J, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P and Class Q Certificates have previously been reduced to zero
as a result of the allocation of Realized Losses and Additional Trust Fund
Expenses pursuant to Section 4.04(a).
"Class A Senior Certificates": The Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5 and Class A-6 Certificates.
"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 portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-5 Certificate": Any one of the Certificates with a "Class A-5"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-6 Certificate": Any one of the Certificates with a "Class A-6"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class A-J Certificate": Any one of the Certificates with a "Class A-J"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III 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-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
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"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional amount
on which any Class of Interest Only Certificates accrues or is deemed to accrue
interest from time to time, as calculated in accordance with Section 2.17(e).
"Class P Certificate": Any of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any Class
of Principal Balance Certificates outstanding as of any date of determination.
As of the Closing Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall equal the initial Class Principal Balance thereof. On
each Distribution Date, the Class Principal Balance of each Class of Principal
Balance Certificates shall be (i) reduced by the amount of any distributions of
principal made thereon on such Distribution Date pursuant to Section 4.01, and
(ii) further reduced by the amount of any Realized Losses and Additional Trust
Fund Expenses deemed allocated thereto on such Distribution Date pursuant to
Section 4.04(a); provided, however, that if the Principal Distribution Amount
for such Distribution Date includes any amount described in clause (I)(C) of the
definition of "Principal Distribution Amount" (in respect of recoveries during
the Collection Period related to such Distribution Date of amounts determined to
constitute Nonrecoverable Advances during a Collection Period related to a prior
Distribution Date), then the Class Principal Balances of the respective Classes
of Principal Balance Certificates shall hereby be increased (in the aggregate)
immediately prior to such Distribution Date by the lesser of the amount of
Realized Losses previously allocated thereto and such amount described in such
clause (I)(C) (and, as among the respective Classes of Principal Balance
Certificates, such increase shall be allocated in sequential order (in each case
to the extent of the lesser of the Realized Losses previously allocated thereto
and the remaining unallocated portion of the increase) according to alphabetical
Class designation or, in the case of a Class of Class A Senior Certificates, pro
rata according to the amounts of Realized Losses previously allocated to the
respective Classes of Class A Senior Certificates).
"Class Q Certificate": Any of the Certificates with a "Class Q"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class R Certificate": Any of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing ownership of Grantor Trust R.
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"Class V Certificate": Any of the Certificates with a "Class V"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing ownership of Grantor Trust V.
"Class X-1 Certificate": Any of the Certificates with a "Class X-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-1 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Certificate": Any of the Certificates with a "Class X-2"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a portion of a class of "regular interests" in
REMIC III for purposes of the REMIC Provisions.
"Class X-2 Strip Rate": As defined in Section 2.17(f).
"Class X-2 Termination Date": With respect to each REMIC III Component
of the Class X-2 Certificates, the Distribution Date that occurs in the month
set forth opposite such REMIC III Component in the Preliminary Statement under
the column entitled "Class X-2 Termination Date for REMIC III Component of Class
X-2 Certificates" in the table entitled "REMIC III--Corresponding REMIC II
Regular Interests".
"Clearstream": Clearstream Banking, societe anonyme or any successor.
"Closing Date": December 21, 2004.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be reasonably
acceptable to each Master Servicer, the Certificate Administrator, the Trustee,
the Special Servicer and the Controlling Class Representative.
"CMSA Bond Level File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Bond Level File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Collateral Summary File": The report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Collateral Summary File" available as of the Closing Date on the CMSA Website,
or such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Certificate Administrator and the Trustee.
"CMSA Comparative Financial Status Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Comparative Financial Status Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information as
may from time to time be
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recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer and the Special
Servicer. Each CMSA Comparative Financial Status Report shall be based on (1)
the most recent rent roll and (2) to the extent provided to the applicable
Master Servicer or the Special Servicer, (i) in connection with a CMSA
Comparative Financial Status Report relating to quarterly financial information,
trailing 12 months of financial information (non-normalized), if trailing 12
months of financial information was provided to the applicable Master Servicer
or the Special Servicer (as the case may be), or financial information based on
9 months of operating statements or year-to-date financial information, if
trailing 12 months of financial information was not provided to the applicable
Master Servicer or the Special Servicer (as the case may be) and 9 months of
operating statements or year-to-date financial information was provided to the
applicable Master Servicer or the Special Servicer (as the case may be) or (ii)
in connection with a CMSA Comparative Financial Status Report relating to annual
financial information, annual operating statements (if provided to the
applicable Master Servicer or the Special Servicer (as the case may be)),
normalized. To the extent the information described above has been provided to
the applicable Master Servicer or the Special Servicer, each CMSA Comparative
Financial Status Report shall present (among other things called for by the form
of CMSA Comparative Financial Status Report) the occupancy rate, debt service
coverage ratio, net operating income and net cash flow for each Mortgage Loan or
Mortgaged Property covered thereby.
"CMSA Delinquent Loan Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Delinquent Loan Status Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer and the Special Servicer.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to each Master Servicer.
"CMSA Historical Liquidation Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Historical Liquidation Report" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer and the Special Servicer.
"CMSA Historical Loan Modification Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Historical Loan Modification Report" available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer and the Special
Servicer.
"CMSA Investor Reporting Package": Collectively:
(a) the following electronic files: (i) CMSA Loan Setup File, (ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond Level
File, (v) CMSA Financial File and (vi) CMSA Collateral Summary File; and
(b) the following supplemental reports: (i) CMSA Delinquent Loan Status
Report, (ii) CMSA Historical Loan Modification Report, (iii) CMSA Historical
Liquidation Report, (iv) CMSA REO Status Report, (v) CMSA Operating
Statement Analysis Report, (vi) CMSA Comparative Financial Status Report,
(vii) CMSA Servicer Watch List, (viii) CMSA NOI Adjustment Worksheet, (ix)
CMSA Loan Level Reserve Report, (x) CMSA Reconciliation of Funds Report and
(xi) CMSA Special Servicer Loan File.
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Notwithstanding anything in this Agreement to the contrary, in the
event any of the electronic files listed in clause (a) of this definition or any
of the supplemental reports listed in clause (b) of this definition are amended
or changed in any material respect by the CMSA and placed on the CMSA Website or
otherwise recommended by the CMSA for commercial mortgage-backed securities
transactions generally, so long as such electronic files and such supplemental
reports are reasonably acceptable (as applicable) to each Master Servicer and
the Special Servicer, then same shall be used with respect to the Collection
Period that commences at any time following the date that is three (3) months
following adoption of the form thereof by the CMSA.
"CMSA Loan Level Reserve Report": A report substantially in the form
of, and containing the information called for in, the "Loan Level Reserve
Report" as adopted by the CMSA and made available at the CMSA Website.
"CMSA Loan Periodic Update File": The monthly report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Loan Periodic Update File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to each Master Servicer, the Special Servicer, the
Certificate Administrator and the Trustee.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "Loan
Setup File" available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer, the Special Servicer, the Certificate Administrator and
the Trustee.
"CMSA NOI Adjustment Worksheet": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to each Master Servicer and the Special Servicer and in any event,
shall present the computations made in accordance with the methodology described
in such form to "normalize" the full year net operating income and debt service
coverage numbers used in the other reports required by this Agreement.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Property
File" available as of the Closing Date on the CMSA Website, or such other form
for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer and the Special Servicer.
"CMSA Operating Statement Analysis Report": A report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Operating Statement Analysis Report" available as of the Closing Date on
the CMSA Website or in such other form for the presentation of such information
and containing such additional information as may from time to time be
recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each Master Servicer.
"CMSA Reconciliation of Funds Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Reconciliation of Funds Report" available as of the Closing Date on the
CMSA Website or in such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage-backed securities transactions generally and
is reasonably acceptable to the Certificate Administrator.
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"CMSA REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be recommended by the CMSA for
commercial mortgage-backed securities transactions generally and is reasonably
acceptable to the Special Servicer.
"CMSA Servicer Watch List": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "Servicer
Watch List" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be adopted by the CMSA for
commercial mortgage-backed securities transactions and is reasonably acceptable
to each Master Servicer.
"CMSA Special Servicer Loan File": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Special Servicer Loan File" available as of the Closing Date on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be adopted by
the CMSA for commercial mortgage-backed securities transactions and is
reasonably acceptable to the Special Servicer.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collection Account": The segregated account or accounts created and
maintained by each Master Servicer, pursuant to Section 3.04(a), in trust for
the Certificateholders, which shall be entitled "[name of subject Master
Servicer], as a Master Servicer, on behalf of LaSalle Bank National Association
[or name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, 2004-PWR6, Collection Account".
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Cut-off Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission or any successor
thereto.
"Companion Note Custodial Account": As defined in Section 3.04(e).
"Compensating Interest Payment": With respect to any Distribution Date,
any payment made by a Master Servicer or the Certificate Administrator from its
own funds pursuant to Section 3.19(c) to cover Prepayment Interest Shortfalls
incurred during the related Collection Period.
"Component Notional Amount": The notional amount on which any REMIC III
Component of either Class of Interest Only Certificates accrues interest, which,
as of any date of determination, is equal to the then current Uncertificated
Principal Balance of such REMIC III Component's Corresponding REMIC II Regular
Interest.
"Condemnation Proceeds": All cash amounts actually Received by the
Trust or on behalf of the Trustee, a Master Servicer or the Special Servicer
(including with respect to the Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the Non-Trust Master Servicer or
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the Non-Trust Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor Agreement and/or the Non-Trust Servicing Agreement) in connection
with the taking of all or a part of a Mortgaged Property or REO Property by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof applied to the restoration of the related Mortgaged Property or
REO Property (or placed in a reserve account for that purpose) or required to be
released to the related Borrower or any other third-party in accordance with
applicable law and/or the terms and conditions of the related Mortgage Loan
Documents or any other applicable document.
"Controlling Class": As of any date of determination, the outstanding
Class of Principal Balance Certificates that (a) bears the latest alphabetic
Class designation and (b) has a Class Principal Balance which is not less than
25% of the initial Class Principal Balance of such Class; provided that if no
Class of Principal Balance Certificates has as of such date of determination a
Class Principal Balance not less than 25% of its initial Class Principal
Balance, then the Controlling Class shall be the then most subordinate (based on
the payment priorities set forth in Section 4.01(a)) outstanding Class of
Principal Balance Certificates that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of this definition, the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6 Certificates shall
be deemed to constitute a single Class of Certificates.
"Controlling Class Certificateholder": Any Holder of Certificates of
the Controlling Class.
"Controlling Class Representative": As defined in Section 3.23(a). The
initial Controlling Class Representative shall be ARCap CMBS Fund II REIT, Inc.
"Corporate Trust Office: The corporate trust office of the Certificate
Administrator or the asset-backed securities trust services office of the
Trustee, as the case may be, at which at any particular time its duties, with
respect to this Agreement shall be administered, which office is as of the
Closing Date located: (i) in the case of the Certificate Administrator, for
Certificate transfer purposes, at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: Corporate Trust Services-Bear
Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6, and for all other
purposes, at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Services, Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
2004-PWR6; and (ii) in the case of the Trustee, at 000 Xxxxx XxXxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Global Securitization Trust Services
Group-Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6.
"Corrected Mortgage Loan": Any Serviced Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
"Corrected Pooled Mortgage Loan": Any Serviced Pooled Mortgage Loan
that is a Corrected Mortgage Loan. Notwithstanding anything to the contrary
contained herein, in no event shall the Non-Trust-Serviced Pooled Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding Class of Principal Balance Certificates": With respect
to any REMIC III Component of either Class of Interest Only Certificates, the
Class of Principal Balance Certificates opposite which such REMIC III Component
is set forth in the Preliminary Statement in the table entitled "REMIC
III--Corresponding REMIC II Regular Interests".
"Corresponding REMIC II Regular Interest(s)": (a) With respect to any
Class of Principal Balance Certificates, the one or more REMIC II Regular
Interests opposite which such Class is set forth in the Preliminary Statement in
the table entitled "REMIC III--Corresponding REMIC II Regular Interests"; (b)
with respect to any REMIC III Component of the Class X-1 Certificates, the REMIC
II Regular Interest opposite which such REMIC III Component is set forth in the
Preliminary Statement in the table entitled "REMIC III--Corresponding REMIC II
Regular Interests"; and (c) with respect to any REMIC III Component of the Class
X-2 Certificates, the REMIC II Regular Interest opposite
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which such REMIC III Component is set forth in the Preliminary Statement in the
table entitled "REMIC III--Corresponding REMIC II Regular Interests".
"Cross-Collateralized Group": Any group of Mortgage Loans that are
cross-defaulted and cross-collateralized with each other. For the avoidance of
doubt, the parties acknowledge that no group of Mortgage Loans constitutes a
Cross-Collateralized Group.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other Mortgage
Loan; provided that the Mortgage Loans that are part of any Serviced Mortgage
Loan Group shall not constitute Cross-Collateralized Mortgage Loans. For the
avoidance of doubt, the parties acknowledge that none of the Mortgage Loans
constitutes a Cross-Collateralized Mortgage Loan.
"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, the Pooled Mortgage Loan Sellers or an
Affiliate of any of them.
"Cut-off Date": With respect to each Mortgage Loan, the Due Date for
the Monthly Payment due on such Mortgage Loan in December 2004 (or, in the case
of any Mortgage Loan that has its first Due Date in January 2005, the date that
would have been its Due Date in December 2004 under the terms of such Mortgage
Loan if a Monthly Payment were scheduled to be due in such month).
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of its Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"Default Charges": Default Interest and/or late payment charges that
are paid or payable, as the context may require, in respect of any Mortgage Loan
or REO Mortgage Loan.
"Default Interest": With respect to any Mortgage Loan (or successor REO
Mortgage Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Charges, that represent interest
(exclusive, if applicable, of Post-ARD Additional Interest) in excess of
interest accrued on the principal balance of such Mortgage Loan (or REO Mortgage
Loan) at the related Mortgage Rate, such excess interest arising out of a
default under such Mortgage Loan.
"Defaulting Party": As defined in Section 7.01(b).
"Defective Pooled Mortgage Loan": Any Pooled Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate": As defined in Section 5.03(a).
"Deleted Pooled Mortgage Loan": A Defective Pooled Mortgage Loan that
is purchased or repurchased, as the case may be, from the Trust or replaced with
one or more Replacement Pooled Mortgage Loans, in either case as contemplated by
Section 2.03.
"Depositor": Bear Xxxxxxx Commercial Mortgage Securities II 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 Exchange Act.
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"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.
"Designated MERS Mortgage": As defined in clause (iii) of the
definition of "Mortgage File".
"Designated Sub-Servicer": Any Sub-Servicer set forth on Schedule III
hereto and any successor to such Sub-Servicer under the related Designated
Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement": Any Sub-Servicing Agreement
between a Designated Sub-Servicer and a Master Servicer.
"Determination Date": With respect to any Distribution Date, the fifth
(5th) Business Day preceding such Distribution Date.
"Directly Operate": With respect to any Administered REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale or lease, the performance of any construction work thereon or any use of
such REO Property in a trade or business conducted by the Trust other than
through an Independent Contractor; provided, however, that the Trustee (or the
Special Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an Administered REO Property solely because the Trustee (or the Special
Servicer on behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or makes decisions
as to repairs or capital expenditures with respect to such REO Property.
"Discount Rate": As defined in Section 4.01(b).
"Disqualified Non-United States Tax Person": With respect to any Class
R Certificate, any Non-United States Tax Person or agent thereof other than: (1)
a Non-United States Tax Person that (a) holds such Class R Certificate and, for
purposes of Treasury Regulations Section 1.860G-3(a)(3), is subject to tax under
Section 882 of the Code, (b) certifies that it understands that, for purposes of
Treasury Regulations Section 1.860E-1(c)(4)(ii), as a holder of such Class R
Certificate for United States federal income tax purposes, it may incur tax
liabilities in excess of any cash flows generated by such Class R Certificate
and intends to pay taxes associated with holding such Class R Certificate, and
(c) has furnished the Transferor, the Trustee, the Certificate Administrator and
the Tax Administrator with an effective IRS Form W-8ECI or successor form and
has agreed to update such form as required under the applicable Treasury
regulations; or (2) a Non-United States Tax Person that has delivered to the
Transferor, the Trustee, the Certificate Administrator and the Tax Administrator
an opinion of nationally recognized tax counsel to the effect that (x) the
Transfer of such Class R Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Class R Certificate will not be disregarded for United States
federal income tax purposes.
"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 Xxxxxxx Mac, 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 Tax Administrator, based upon an Opinion
of Counsel delivered to the Tax Administrator (but not at the Tax
Administrator's expense) to the effect that the holding of an Ownership Interest
in a Class R Certificate by such Person may cause the Trust 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
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Ownership Interest in a Class R 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.
"Disqualified Partnership": Any domestic entity classified as a
partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest": With respect to any Class of
Regular Interest Certificates for any Distribution Date, an amount of interest
equal to the amount of Accrued Certificate Interest in respect of such Class of
Certificates for the related Interest Accrual Period, reduced (to not less than
zero) by that portion, if any, of the Net Aggregate Prepayment Interest
Shortfall for such Distribution Date allocated to such Class of Certificates as
provided below; provided, however, that if the Class Principal Balance of such
Class of Certificates is deemed to have been increased immediately prior to such
Distribution Date pursuant to the proviso to the definition of "Class Principal
Balance" because the Principal Distribution Amount for such Distribution Date
includes any collections of amounts that (x) had previously been determined to
constitute Nonrecoverable Advances, (y) were reimbursed to a party to this
Agreement from the principal portions of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool in a Collection Period prior to
the one related to such Distribution Date (pursuant to subsection (II)(iv) of
Section 3.05(a)) and (z) were recovered in the Collection Period related to such
Distribution Date, then the Distributable Certificate Interest for such Class
and such Distribution Date shall equal the sum of (i) the amount of the
Distributable Certificate Interest for such Class and Distribution Date,
calculated as otherwise provided above without regard to this proviso, and (ii)
an amount equal to the interest that would have accrued (on a 30/360 Basis), at
the Pass-Through Rate for such Class in effect for such Interest Accrual Period,
on a principal amount equal to the deemed increase in such Class Principal
Balance, during such Interest Accrual Period and each prior Interest Accrual
Period related to a Distribution Date that occurred subsequent to the earliest
Distribution Date on which a Realized Loss was allocated to such Class of
Principal Balance Certificates pursuant to Section 4.04. A portion of the Net
Aggregate Prepayment Interest Shortfall, if any, for each Distribution Date
shall be allocated to each Class of Principal Balance Certificates in an amount
equal to the product of (i) the amount of such Net Aggregate Prepayment Interest
Shortfall and (ii) a fraction, the numerator of which is the Accrued Certificate
Interest for such Class of Principal Balance Certificates for such Distribution
Date and the denominator of which is the aggregate amount of Accrued Certificate
Interest for all Classes of Principal Balance Certificates for such Distribution
Date. No portion of any Net Aggregate Prepayment Interest Shortfall for any
Distribution Date shall be allocated to the Class X-1 or Class X-2 Certificates.
"Distribution Account": The segregated account or accounts created and
maintained by the Certificate Administrator on behalf of the Trustee, pursuant
to Section 3.04(b), in trust for the Certificateholders, which shall be entitled
"Xxxxx Fargo Bank, National Association [or the name of any successor
Certificate Administrator], as Certificate Administrator, on behalf of LaSalle
Bank National Association [or the name of any successor Trustee], as Trustee, in
trust for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities
II Inc., Commercial Mortgage Pass-Through Certificates, 2004-PWR6, Distribution
Account".
"Distribution Date": The 11th day of any month, or if such 11th day is
not a Business Day, the Business Day immediately following such 11th day,
commencing in January 2005.
"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, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO
Mortgage Loan, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on the related Mortgage Loan had been scheduled to be
first due.
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"XXXXX": The Electronic Data Gathering, Analysis, and Retrieval System
of the Commission, which is the computer system for the receipt, acceptance,
review and dissemination of documents submitted to the Commission in electronic
format.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which are rated no less than "Aa2" by
Moody's (or an "Aa3" senior unsecured credit rating by Moody's in the case of
any accounts maintained at LaSalle; provided that if such rating is lowered to
below "Aa3" by Moody's, then the applicable Master Servicer shall move such
applicable account or accounts within thirty (30) days of such downgrade to an
institution that otherwise complies with this definition) and "AA-" by S&P (or
"A-" by S&P so long as the short-term deposit or short-term unsecured debt
obligations of such depository institution or trust company are rated no less
than "A-1" by S&P), if the deposits are to be held in the account for more than
thirty (30) days, or the short-term deposit or short-term unsecured debt
obligations of which are rated no less than "P-2" by Moody's and "A-1" by S&P,
if the deposits are to be held in the account for thirty (30) days or less, in
any event at any time funds are on deposit therein, (ii) a segregated trust
account maintained with the trust department of a federal or state chartered
depository institution or trust company (which, subject to the remainder of this
clause (ii), may include the Certificate Administrator or the Trustee) acting in
its fiduciary capacity, and which, in either case, has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
federal or state authority and to regulations regarding fiduciary funds on
deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b),
(iii) for so long as WFB serves as a Master Servicer under this Agreement, an
account maintained with WFB or Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned
subsidiary of Xxxxx Fargo & Co., provided that subsidiary's or its parent's (A)
commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-2" by Moody's and A-1" by S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at least "Aa3" by Moody's and "AA-" by S&P (or "A-"
by S&P so long as the short-term deposit or short-term unsecured debt
obligations of such subsidiary or its parent are rated no less than "A-1" by
S&P), if the deposits are to be held in the account for more than 30 days, or
(iv) an account maintained with any one of the following: (x) in the case of an
account that does not and may not potentially contain any funds related to the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan, another insured depository
institution that is acceptable to each Rating Agency for the Rated Certificates
(as evidenced by a written confirmation to the Trustee from each Rating Agency
that the use of such account would not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates), (y) in the case
of an account that does or may potentially contain any funds related to the 11
Penn Plaza Non-Pooled Pari Passu Companion Loan and also does or may potentially
contain any funds related to one or more Pooled Mortgage Loans, another insured
depository institution that is acceptable to each Rating Agency for the Rated
Certificates and each applicable Rating Agency for the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities (as evidenced by a written confirmation to
the Trustee from each Rating Agency that the use of such account would not, in
and of itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency and also from each applicable
Rating Agency that the use of such account would not, in and of itself, result
in an Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable Rating Agency) and
(z) in the case of an account that does or may potentially contain any funds
related to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan and does not
and may not potentially contain any funds related to one or more Pooled Mortgage
Loans, another insured depository institution that is acceptable to each
applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities (as evidenced by a written confirmation to the Trustee from each
such applicable Rating Agency that the use of such account would not, in and of
itself, result in an Adverse Rating Event with respect to any class of 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such applicable
Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the Special Servicer is required to
make or to request a Master Servicer to make, that must be made within five
Business Days of the Special Servicer becoming aware that it must be made in
order to avoid any material penalty, any material harm to a Mortgaged Property
securing a Serviced Mortgage Loan or any other material adverse consequence to
the Trust Fund.
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"Environmental Insurance Policy": With respect to any Mortgaged
Property securing a Serviced Mortgage Loan or any Administered REO Property, any
insurance policy covering pollution conditions and/or other environmental
conditions that is maintained from time to time in respect of such Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by a Master Servicer or the
Special Servicer for the account of the Borrower under any Serviced Mortgage
Loan for application toward the payment of real estate taxes, assessments,
insurance premiums (including with respect to any Environmental Insurance
Policy), ground rents (if applicable) and similar items in respect of the
related Mortgaged Property.
"Euroclear": The Euroclear System or any successor thereto.
"Event of Default": As defined in Section 7.01(a).
"Excess Liquidation Proceeds": The excess, if any, of (a) the Net
Liquidation Proceeds from the sale or liquidation of a Specially Serviced Pooled
Mortgage Loan or an Administered REO Property (or the proceeds of the final
payment (including any full, partial or discounted payoff) on a defaulted Pooled
Mortgage Loan or a Pooled Mortgage Loan that is a Corrected Mortgage Loan that
were Received by the Trust, net of any and all fees, expenses and costs payable
therefrom), over (b) the sum of (i) the amount needed to pay all principal,
interest (including Additional Interest (if applicable) and Default Interest),
Prepayment Premiums or Yield Maintenance Charges (as applicable) and late
payment charges payable with respect to such Pooled Mortgage Loan or the related
REO Pooled Mortgage Loan, as the case may be (together with, without
duplication, any outstanding Unliquidated Advances in respect of any such
principal or interest), in full, (ii) any other fees that would constitute
Additional Master Servicing Compensation and/or Additional Special Servicing
Compensation, (iii) any related unreimbursed Servicing Advances (together with,
without duplication, outstanding Unliquidated Advances in respect of prior
Servicing Advances), (iv) all unpaid Advance Interest on any related Advances
(but (for the avoidance of doubt) excluding any Unliquidated Advances), (v) any
related Liquidation Fee and/or Special Servicing Fees paid or payable in respect
of such Specially Serviced Mortgage Loan or the related REO Pooled Mortgage
Loan, (vi) any other Additional Trust Fund Expenses paid or payable in respect
of such Pooled Mortgage Loan or REO Property, and (vii) in the case of any REO
Property relating to the Serviced Mortgage Loan Group, any portion of such Net
Liquidation Proceeds payable to any one or more of the related Serviced
Non-Pooled Mortgage Loan Noteholder(s).
"Excess Liquidation Proceeds Account": The segregated account created
and maintained by the Certificate Administrator in the name of the Trustee
pursuant to Section 3.04(d) in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association [or name of any successor Trustee],
as Trustee, in trust for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities II Inc., Commercial Mortgage Pass-Through Certificates,
2004-PWR6, Excess Liquidation Proceeds Account".
"Excess Servicing Fees": With respect to each Serviced Mortgage Loan
(and any successor REO Mortgage Loan with respect thereto), that portion of the
Master Servicing Fees that accrue at a per annum rate equal to the Excess
Servicing Fee Rate.
"Excess Servicing Fee Rate": With respect to each Serviced Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto), a rate per
annum equal to the annual rate specified as the "Excess Fee Rate" on the Pooled
Mortgage Loan Schedule; provided that such rate shall be subject to reduction at
any time following any resignation of a Master Servicer pursuant to Section 6.04
(if no successor is appointed in accordance with Section 6.04(b)) or any
termination of a Master Servicer pursuant to Section 7.01, to the extent
reasonably necessary (in the sole discretion of the Trustee) for the Trustee to
appoint a qualified successor Master Servicer (which successor may include the
Trustee) that meets the requirements of Section 7.02.
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"Excess Servicing Fee Right": With respect to each Mortgage Loan (and
any successor REO Mortgage Loan with respect thereto), the right to receive
Excess Servicing Fees. In the absence of any transfer of the Excess Servicing
Fee Right, the related Master Servicer shall be the owner of such Excess
Servicing Fee Right.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exemption-Favored Party": Any of (i) Bear, Xxxxxxx & Co. Inc., (ii)
Xxxxxx Xxxxxxx & Co. Incorporated, (iii) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, (iv) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with Bear,
Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co. Incorporated or Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and (v) any member of any underwriting syndicate or
selling group (including Xxxxx Fargo Brokerage Services, LLC) of which any
Person described in clauses (i), (ii), (iii) and (iv) is a manager or co-manager
with respect to a Class of Certificates that is investment grade rated by at
least one Rating Agency.
"Fair Value": With respect to any Specially Designated Defaulted Pooled
Mortgage Loan, the amount that, in the Special Servicer's reasonable judgment,
taking into account the factors set forth in the first sentence of the second
paragraph of Section 3.18(b) and such other factors as the Special Servicer
reasonably deems appropriate, is the fair value of such Mortgage Loan.
"Xxxxxx Xxx": The Federal National Mortgage Association or any
successor thereto.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"Final Distribution Date": The Distribution Date on which the final
distribution is to be made with respect to the Certificates in connection with a
termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Specially Serviced Mortgage Loan, Corrected Mortgage Loan or
Administered REO Property, or by the applicable Master Servicer with respect to
the Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, that
there has been a recovery of all Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds and other payments or recoveries that the Special Servicer
or such Master Servicer has determined, in accordance with the Servicing
Standard, will be ultimately Received by the Trust; provided that the term Final
Recovery Determination shall not apply to: (i) a Mortgage Loan that was paid in
full (including by means of a payoff on behalf of the Borrower, or the purchase
of such Mortgage Loan, by a mezzanine lender or another creditor of the related
Borrower in connection with a Mortgage Loan default, as set forth in the related
intercreditor agreement) or (ii) a Mortgage Loan or REO Property, as the case
may be, that was purchased by (a) any Pooled Mortgage Loan Seller pursuant to
the related Pooled Mortgage Loan Purchase Agreement, (b) a Purchase Option
Holder or its assignee pursuant to Section 3.18, (c) any Controlling Class
Certificateholder(s), a Master Servicer or the Special Servicer pursuant to
Section 9.01, or (d) any party with a purchase option in respect of the
Non-Trust-Serviced Pooled Mortgage Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement and/or the Non-Trust Servicing Agreement; and
provided, further, that, for purposes of making any such determination with
respect to the Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, the applicable Master Servicer shall be entitled to rely on, and shall
be required to follow, any comparable determination made by the Non-Trust Master
Servicer or the Non-Trust Special Servicer.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation,
or any successor appointed as provided herein.
"Fiscal Agent Agreement": As defined in Section 8.13.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor thereto.
"GAAP": Generally accepted accounting principles in the United States.
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"Global Certificates": The Rule 144A Global Certificates and the
Regulation S Global Certificates, collectively.
"Grantor Trust": A grantor trust as defined under Subpart E of Part 1
of Subchapter J of the Code.
"Grantor Trust Pool": Either of Grantor Trust V or Grantor Trust R.
"Grantor Trust Provisions": Subpart E of Part I of Subchapter J of the
Code, including Treasury Regulations Section 301.7701-4(c)(2).
"Grantor Trust R": The Grantor Trust designated as such in Section
2.18(b).
"Grantor Trust V": The Grantor Trust designated as such in Section
2.18(a).
"Ground Lease": The ground lease pursuant to which any Borrower holds a
leasehold interest in the related Mortgaged Property, together with any
estoppels or other agreements executed and delivered by the ground lessor in
favor of the lender under the related Mortgage Loan(s).
"Group Environmental Insurance Policy": Any Environmental Insurance
Policy that is maintained from time to time in respect of more than one
Mortgaged Property or REO Property.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including 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
asbestos and asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, each Pooled Mortgage
Loan Seller, each Master Servicer, the Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal Agent, each
Non-Trust Master Servicer (insofar as the relevant matter involves the
Non-Trust-Serviced Pooled Mortgage Loan (whether alone or together with one or
more other Pooled Mortgage Loans)), each Non-Trust Special Servicer (insofar as
the relevant matter involves the Non-Trust-Serviced Pooled Mortgage Loan
(whether alone or together with one or more other Pooled Mortgage Loans)), the
Controlling Class Representative 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, any Pooled Mortgage Loan Seller, either Master
Servicer, the Special Servicer, the Certificate Administrator, the Tax
Administrator, the Trustee, the Fiscal Agent, the Non-Trust Master Servicer
(insofar as the relevant matter involves the Non-Trust-Serviced Pooled Mortgage
Loan), the Non-Trust Special Servicer (insofar as the relevant matter involves
the Non-Trust-Serviced Pooled Mortgage Loan), the Controlling Class
Representative or any Affiliate thereof, and (iii) is not connected with the
Depositor, any Pooled Mortgage Loan Seller, either Master Servicer, the Special
Servicer, the Certificate Administrator, the Tax Administrator, the Trustee, the
Fiscal Agent, the Non-Trust Master Servicer (insofar as the relevant matter
involves the Non-Trust-Serviced Pooled Mortgage Loan), the Non-Trust Special
Servicer (insofar as the relevant matter involves the Non-Trust-Serviced Pooled
Mortgage Loan), the Controlling Class Representative 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, any Pooled Mortgage Loan Seller, either
Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Non-Trust Master Servicer, the Non-Trust Special Servicer, the Controlling Class
Representative 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, such Pooled Mortgage Loan Seller, such Master Servicer, the Special
Servicer, the Trustee, such Fiscal Agent, such Non-Trust Master Servicer, such
Non-trust Special Servicer, the Controlling Class Representative or any such
Affiliate thereof, as the case may be, provided that such ownership constitutes
less than 1% of the total assets owned by such Person.
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"Independent Contractor": (a) Any Person that would be an "independent
contractor" with respect to any REMIC Pool within the meaning of Section
856(d)(3) of the Code if such REMIC Pool were a real estate investment trust
(except that the ownership test set forth in that section shall be considered to
be met by any Person that owns, directly or indirectly, 35% or more of any Class
of Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to either Master
Servicer, the Special Servicer, the Trustee or the Trust, delivered to the
Trustee), provided that (i) the Trust does not receive or derive any income from
such Person and (ii) the relationship between such Person and the Trust is at
arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5); or (b) any other Person upon receipt by the Trustee of an Opinion
of Counsel, which shall be at no expense to the Trustee or the Trust, to the
effect that the taking of any action in respect of any Administered 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
Administered 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 Administered REO Property to fail to qualify as Rents from Real
Property.
"Initial Pool Balance": The aggregate Cut-off Date Principal Balance of
all the Original Pooled Mortgage Loans.
"Initial Resolution Period": As defined in Section 2.03(b).
"Institutional Accredited Investor": An "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or any entity in which all of the equity owners come within such
paragraphs.
"Insurance Policy": With respect to any Mortgage Loan or REO Property,
any hazard insurance policy, terrorism insurance policy, flood insurance policy,
title insurance policy, earthquake insurance policy, Environmental Insurance
Policy, business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy and
received by or on behalf of the Trustee, a Master Servicer, the Special Servicer
(including with respect to the Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the Non-Trust Master Servicer or the Non-Trust Special Servicer
pursuant to the related Mortgage Loan Group Intercreditor Agreement and/or the
Non-Trust Servicing Agreement), to the extent such proceeds are not applied to
the restoration of the related Mortgaged Property or REO Property (or placed in
a reserve account for that purpose) or released to the related Borrower or any
other third-party pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(c).
"Interest Accrual Basis": The basis on which interest accrues in
respect of any Mortgage Loan, any REMIC I Regular Interest, any REMIC II Regular
Interest, any Class of Regular Interest Certificates or any particular REMIC III
Component of a Class of Interest Only Certificates, in each case consisting of
one of the following: (i) a 30/360 Basis; or (ii) an Actual/360 Basis.
"Interest Accrual Period": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest, any Class of Regular Interest
Certificates or any particular REMIC III Component of a Class of Interest Only
Certificates, for any Distribution Date, the calendar month immediately
preceding the month in which such Distribution Date occurs.
"Interest Only Certificates": Collectively, the Class X-1 and Class X-2
Certificates.
"Interest Reserve Account": The segregated account (or sub-account of
the Distribution Account) created and maintained by the Certificate
Administrator on behalf of the Trustee, pursuant to Section 3.04(c), in trust
for the
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Certificateholders, which shall be entitled "Xxxxx Fargo Bank, National
Association [or the name of any successor Certificate Administrator], as
Certificate Administrator, on behalf of LaSalle Bank National Association [or
the name of any successor Trustee], as Trustee, in trust for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, 2004-PWR6, Interest Reserve Account".
"Interest Reserve Amount": With respect to each Pooled Mortgage Loan
that is an Interest Reserve Loan (or the related successor REO Pooled Mortgage
Loan), for any Distribution Date that occurs during February of 2005 or February
of any year thereafter or during January of 2005 or January of any year
thereafter that is not a leap year, an amount equal to one day's interest
accrued at the related Net Mortgage Rate on the related Stated Principal Balance
as of the end of the Collection Period related to such Distribution Date (or, in
the case of any Pooled Mortgage Loan for which the Due Date is on the 5th day of
each month, as of the Due Date in the month in which such Distribution Date
occurs), but prior to giving effect to the application of any amounts due on the
Due Date occurring in such Collection Period (or, in the case of any Pooled
Mortgage Loan for which the Due Date is on the 5th day of each month, due on the
Due Date in the month in which such Distribution Date occurs), to the extent
that a Monthly Payment is Received by the Trust with respect to such Interest
Reserve Loan for the related Due Date in the same month as such Distribution
Date on or before the related Master Servicer Remittance Date or a P&I Advance
is made under this Agreement with respect to such Interest Reserve Loan by such
Distribution Date. For purposes of calculating Interest Reserve Amounts, the Net
Mortgage Rate for each Interest Reserve Loan shall be the Net Mortgage Rate as
of the Closing Date, without regard to any modifications, extensions, waivers or
amendments of such Interest Reserve Loan subsequent to the Closing Date (whether
entered into by the applicable Master Servicer, the Special Servicer, the
Non-Trust Master Servicer or the Non-Trust Special Servicer or in connection
with any bankruptcy, insolvency or other similar proceeding involving the
related Borrower).
"Interest Reserve Loan": Any Pooled Mortgage Loan that is an Actual/360
Mortgage Loan (or any successor REO Pooled Mortgage Loan with respect thereto).
"Investment Account": Each of the Collection Accounts, the Companion
Note Custodial Accounts, the Servicing Accounts, the Reserve Accounts, the REO
Accounts, the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
"Investment Company Act": The Investment Company Act of 1940, as
amended.
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor thereto.
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"LaSalle": LaSalle Bank National Association or its successor in
interest.
"Late Collections": (a) With respect to any Pooled Mortgage Loan, all
amounts Received by the Trust thereon during any Collection Period, whether as
payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which (as applied under Section 1.03) represent collections of the
principal and/or interest portions of a Monthly Payment (other than a Balloon
Payment) or an Assumed Monthly Payment in respect of such Pooled Mortgage Loan
due or deemed due on a Due Date in a previous Collection Period (or, in the case
of any Pooled Mortgage Loan for which the Due Date is on the 5th day of each
month, due or deemed due on the Due Date in the calendar month preceding the
month in which such Collection Period ends) or on a Due Date during or prior to
the month of the Cut-off Date for such Pooled Mortgage Loan, and not previously
Received by the Trust; and (b) with respect to any REO Pooled Mortgage Loan, all
amounts Received by the Trust in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise,
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which (as applied under Section 1.03) represent collections of the principal
and/or interest portions of a Monthly Payment (other than a Balloon Payment) or
an Assumed Monthly Payment in respect of the predecessor Pooled Mortgage Loan or
the principal and/or interest portions of an Assumed Monthly Payment in respect
of such REO Pooled Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period (or, in the case of any Pooled Mortgage Loan for which the Due
Date is on the 5th day of each month, due or deemed due on the Due Date in the
calendar month preceding the month in which such Collection Period ends) and not
previously Received by the Trust. Late Collections do not include Default
Charges.
"Latest Possible Maturity Date": With respect to any REMIC I Regular
Interest, any REMIC II Regular Interest or any Class of Regular Interest
Certificates, the "latest possible maturity date" thereof, calculated solely for
purposes of satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit": With respect to any Mortgage Loan, any third-party
letter of credit delivered by or at the direction of the related Borrower
pursuant to the terms of such Mortgage Loan in lieu of the establishment of, or
deposit otherwise required to be made into, a Reserve Fund or otherwise pledged
or assigned by the related Borrower as Additional Collateral.
"Lincoln Square Intercreditor Agreement": That certain Intercreditor
Agreement, dated as of June 1, 2004, by and among BSCMI, as lead lender, BSCMI,
as loan 2 lender and BSCMI, as loan 3 lender.
"Lincoln Square Loan Group": The Lincoln Square Pooled Mortgage Loan
and the Lincoln Square Non-Pooled Pari Passu Companion Loans, together.
"Lincoln Square Mortgaged Property": The Mortgaged Property identified
on the Pooled Mortgage Loan Schedule as "Lincoln Square".
"Lincoln Square Non-Pooled Pari Passu Companion Loans": The two
mortgage loans, with original principal balances in the amount of $60,000,000
and $50,000,000, respectively, that are secured by the same Mortgage encumbering
the Lincoln Square Mortgaged Property as the Lincoln Square Pooled Mortgage Loan
and are pari passu in right of payment with the Lincoln Square Pooled Mortgage
Loan. The Lincoln Square Non-Pooled Pari Passu Companion Loans are not "Pooled
Mortgage Loans" or part of the Trust Fund, any REMIC Pool or either Grantor
Trust Pool.
"Lincoln Square Pooled Mortgage Loan": The Pooled Mortgage Loan secured
by the Lincoln Square Mortgaged Property.
"Liquidation Event": (a) 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 or replaced by a Pooled Mortgage Loan Seller pursuant to the
related Pooled Mortgage Loan Purchase Agreement, as contemplated by Section
2.03, (iv) such Mortgage Loan is purchased by the Special Servicer, the Majority
Controlling Class Certificateholder(s) or any assignee of either of them
pursuant to Section 3.18, (v) such Mortgage Loan is purchased by any Controlling
Class Certificateholder(s), a Master Servicer or the Special Servicer pursuant
to Section 9.01, (vi) such Mortgage Loan is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01, (vii) such Mortgage Loan is paid off or purchased by the holder of a
related mezzanine loan or another creditor of the Borrower in connection with a
Mortgage Loan default, if so permitted and set forth in the related
intercreditor agreement, or (viii) in the case of the Non-Trust-Serviced Pooled
Mortgage Loan, such Mortgage Loan is purchased by a holder of a purchase option
with respect thereto pursuant to the Non-Trust Servicing Agreement and/or the
related Mortgage Loan Group Intercreditor Agreement; and (b) with respect to any
REO Property (and the related REO Mortgage Loan), any of the following events:
(i) a Final Recovery Determination is made with respect to such REO Property,
(ii) such REO Property is repurchased or replaced by a Pooled Mortgage Loan
Seller pursuant to the related Pooled Mortgage Loan Purchase Agreement, as
contemplated by Section 2.03, (iii) such REO Property is purchased by a Master
Servicer, the Special Servicer or any Controlling Class Certificateholder(s)
pursuant to
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Section 9.01, or (iv) such REO Property is acquired by the Sole
Certificateholder(s) in exchange for all of the Certificates pursuant to Section
9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out-of-pocket" costs and expenses due and owing (but not otherwise covered by
Servicing Advances) in connection with the liquidation of any Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or Section 3.18
(including legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": The fee designated as such in, and payable to the
Special Servicer in connection with certain events in respect of a Specially
Serviced Mortgage Loan or an REO Property pursuant to, Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds, Condemnation Proceeds and REO Revenues) Received by the Trust in
connection with: (i) the liquidation of a Mortgaged Property, REO 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 Borrower in accordance
with applicable law and/or the terms and conditions of the related Mortgage Note
and Mortgage; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Pooled
Mortgage Loan by the Special Servicer, the Majority Controlling Class
Certificateholder(s) or any assignee of either of them pursuant to Section 3.18;
(iv) the repurchase or replacement of a Pooled Mortgage Loan or REO Property by
a Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement as contemplated by Section 2.03 of this Agreement; (v) the
purchase of a Pooled Mortgage Loan or REO Property by a Master Servicer, the
Special Servicer and/or any Controlling Class Certificateholder(s) pursuant to
Section 9.01; (vi) the acquisition of any Pooled Mortgage Loan or REO Property
by the Sole Certificateholder(s) in exchange for all the Certificates pursuant
to Section 9.01; (vii) the purchase of the Non-Trust-Serviced Pooled Mortgage
Loan by any holder of a purchase option with respect thereto pursuant to the
Non-Trust Servicing Agreement and/or the related Mortgage Loan Group
Intercreditor Agreement; or (viii) the payoff or purchase of a Pooled Mortgage
Loan or REO Property by the holder of a related mezzanine loan or another
creditor of the Borrower in connection with a Mortgage Loan default, if so
permitted and set forth in the related intercreditor agreement.
"Majority Controlling Class Certificateholder(s)": As of any date of
determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer": With respect to any Mortgage Loan and any REO
Property acquired in respect thereof, either (a) if such Mortgage Loan is a PMCF
Pooled Mortgage Loan, PAR, or any successor thereto appointed as provided
herein, or (b) if such Mortgage Loan is a BSCMI Pooled Mortgage Loan, a WFB
Pooled Mortgage Loan or a Nationwide Pooled Mortgage Loan, WFB, or any successor
thereto appointed as provided herein. Any reference herein to a "Master
Servicer" hereunder (including Articles VI and VII hereof) shall, if such Master
Servicer is the one described by clause (a) of this definition, also be
construed to refer to the Servicer Report Administrator to the extent of the
rights granted to and obligations imposed on the Servicer Report Administrator
under this Agreement.
"Master Servicer Remittance Amount": With respect to either Master
Servicer for any Master Servicer Remittance Date, an amount equal to (a) all
amounts on deposit in such Master Servicer's Collection Account as of 11:00
a.m., New York City time, on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments with
respect to any Pooled Mortgage Loan that are due on a Due Date following the end
of the related Collection Period (or, in the case of any Pooled Mortgage Loan
for which the Due Date is on the 5th day of each month, due on a Due Date
occurring in a month that is subsequent to the month in which such Collection
Period ends), (ii) to the extent not covered by clause (i)
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above, any payments of principal (including Principal Prepayments) and interest
(including Post-ARD Additional Interest), Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds Received by the Trust with respect to any
Pooled Mortgage Loan or REO Property after the end of the related Collection
Period, (iii) any Prepayment Premiums and/or Yield Maintenance Charges Received
by the Trust with respect to any Pooled Mortgage Loan or successor REO Pooled
Mortgage Loan with respect thereto after the end of the related Collection
Period, (iv) any Excess Liquidation Proceeds, (v) any amounts payable or
reimbursable to any Person from such Collection Account pursuant to clauses (ii)
through (xxi) of Section 3.05(a), and (vi) any amounts deposited in such
Collection Account in error; provided that the Master Servicer Remittance Amount
with respect to each Master Servicer for the Master Servicer Remittance Date
that occurs in the same calendar month as the anticipated Final Distribution
Date shall be calculated without regard to clauses (b)(i), (b)(ii), (b)(iii) and
(b)(iv) of this definition; and provided, further, however, that the foregoing
provisions of this definition shall be construed in a manner that is consistent
with Section 3.02(d).
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
successor REO Mortgage Loan with respect thereto), the fee designated as such
and payable to the applicable Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to (i) each Pooled Mortgage
Loan (other than the Non-Trust-Serviced Mortgage Loan) and any successor REO
Pooled Mortgage Loan with respect thereto, a rate per annum equal to (a) the
rate per annum specified as the "Administrative Fee Rate" on the Pooled Mortgage
Loan Schedule, minus (b) the sum of (x) the Servicer Report Administrator Fee
Rate and (y) the Trustee Fee Rate; (ii) the Non-Trust-Serviced Pooled Mortgage
Loan, a rate per annum equal to three basis points (0.03%); and (iii) the 11
Penn Plaza Non-Pooled Pari Passu Companion Loan, a rate per annum equal to three
basis points (0.03%).
"Material Breach": With respect to any Pooled Mortgage Loan, any Breach
that materially and adversely affects the interests of the Certificateholders,
or any of them, with respect to the affected Pooled Mortgage Loan, including but
not limited to a material and adverse effect on any of the distributions payable
with respect to any of the Certificates or on the value of such Certificates.
"Material Document Defect": With respect to any Pooled Mortgage Loan,
any Document Defect that materially and adversely affects the interests of the
Certificateholders, or any of them, with respect to the affected Pooled Mortgage
Loan, including but not limited to a material and adverse effect on any of the
distributions payable with respect to any of the Certificates or on the value of
such Certificates. Notwithstanding the foregoing, the absence of a Specially
Designated Mortgage Loan Document following the date on which such Specially
Designated Mortgage Loan Document is required to be delivered to the Trustee as
described in Section 2.01(d) shall also constitute a Material Document Defect.
"MERS": Mortgage Electronic Registration Systems, Inc.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount or timing of any payment of principal
or interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Pooled Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results 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, or the delivery of substitute real property
collateral with a fair market value (as is), that is not less than the fair
market value (as is) of the property to be released, as determined by an
Appraisal delivered to the Special Servicer (at the expense of the related
Borrower and upon which the Special Servicer may conclusively rely); or
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(c) in the reasonable judgment of the Special Servicer, otherwise
materially impairs the security for such Pooled Mortgage Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to each Collection Period, a report, in the form of Exhibit E-7 (or such
form for the presentation of such information and containing such additional
information as may from time to time be recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer, the Special Servicer, the Servicer Report
Administrator, the Trustee and the Certificate Administrator) that identifies
the following with respect to such Collection Period, in all cases both on a
loan-by-loan basis and in the aggregate:
(a) the amount of any Advance (and accrued and unpaid Advance Interest
thereon) that became a Workout-Delayed Reimbursement Amount during such
Collection Period;
(b)(i) the amount of any Workout-Delayed Reimbursement Amount that was
reimbursed to a Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent during such Collection Period, (ii) the extent to which any
reimbursement of a Workout-Delayed Reimbursement Amount made during such
Collection Period was made from principal advances and collections on the
related Mortgage Loan received during such Collection Period as contemplated
by subsection (iii) of Section 3.05(a)(II), (iii) the extent to which any
reimbursement of a Workout-Delayed Reimbursement Amount made during such
Collection Period was made from principal advances and collections on the
remainder of the Mortgage Pool received during such Collection Period as
contemplated by subsection (iii) of Section 3.05(a)(II) and (iv) the amount
of any related Unliquidated Advances;
(c)(i) the amount of any Unliquidated Advances recovered from the
related Borrower or otherwise from the proceeds of the related Mortgage Loan
or REO Property on behalf of the Trust during the current Collection Period
and (ii) the extent to which any such recovery constitutes an amount
described by clause (I)(B) of the definition of "Principal Distribution
Amount";
(d)(i) the amount of any Unliquidated Advance that became a
Nonrecoverable Advance in the current Collection Period, and (ii) the amount
of any Workout-Delayed Reimbursement Amount that arose in a prior Collection
Period, was not reimbursed to a Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent in the current or a prior Collection Period (and
therefore had not become an Unliquidated Advance) but which has became a
Nonrecoverable Advance in the current Collection Period;
(e) the amount of any Advance (and accrued and unpaid Advance Interest
thereon), other than an amount described in clause (d) above, that became a
Nonrecoverable Advance during such Collection Period;
(f)(i) the amount of any Nonrecoverable Advance (and accrued and unpaid
Advance Interest thereon) that was reimbursed to a Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent during the current
Collection Period, and (ii) the extent (if any) to which any reimbursement
of a Nonrecoverable Advance (and accrued and unpaid Advance Interest
thereon) was made from principal advances and collections on the Mortgage
Pool received during such Collection Period as contemplated by subsection
(iv) of Section 3.05(a)(II);
(g)(i) the amount of any Advance reimbursed to a Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent as a Nonrecoverable
Advance in a prior Collection Period but recovered from the related Borrower
or otherwise from the proceeds of the related Mortgage Loan or REO Property
on behalf of the Trust during the current Collection Period (notwithstanding
that it was previously determined to constitute a Nonrecoverable Advance)
and (ii) the extent to which any such amount is an amount described by
clause (I)(C) of the definition of "Principal Distribution Amount"; and
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(h) a reconciliation of Advance Interest that was a component of any
Workout-Delayed Reimbursement Amount or of any Nonrecoverable Advance, any
Default Charges collected during the related Collection Period and the
amount of Default Charges that were applied to pay such Advance Interest.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the applicable Master
Servicer and shall not constitute a responsibility of any other party. Each CMSA
Loan Periodic Update File prepared by a Master Servicer shall be accompanied by
a Monthly Additional Report on Recoveries and Reimbursements. Notwithstanding
anything in this Agreement to the contrary, the applicable Master Servicer shall
not be required to deliver a Monthly Additional Report on Recoveries and
Reimbursements (and the relevant CMSA Loan Periodic Update File need not be
accompanied by any such report) with respect to any Collection Period prior to
the date when a Workout-Delayed Reimbursement Amount or a Nonrecoverable Advance
exists with respect to any Pooled Mortgage Loan for which such Master Servicer
is the applicable Master Servicer.
"Monthly Payment": With respect to any Mortgage Loan, as of any Due
Date, the scheduled monthly debt service payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum monthly debt
service payment required to be paid on a current basis) on such Mortgage Loan
that is actually payable by the related Borrower 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
Borrower or by reason of a modification, extension, waiver or amendment granted
or agreed to by the applicable Master Servicer or the Special Servicer pursuant
to Section 3.20 (or, in the case of the Non-Trust-Serviced Pooled Mortgage Loan,
by the Non-Trust Master Servicer or the Non-Trust Special Servicer pursuant to
the relevant Non-Trust Servicing Agreement)), including any Balloon Payment
payable in respect of such Mortgage Loan on such Due Date; provided that the
Monthly Payment due in respect of any Mortgage Loan shall not include Default
Interest; and provided, further, that the Monthly Payment due in respect of any
ARD Mortgage Loan after its Anticipated Repayment Date shall not include
Additional Interest.
"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 organization or other comparable Person designated by the
Depositor, notice of which designation shall be given to the other parties
hereto, and specific ratings of Moody's herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated. References herein to
"applicable rating category" (other than such references to "highest applicable
rating category") shall, in the case of Moody's, be deemed to refer to such
applicable rating category of Moody's, without regard to any plus or minus or
other comparable rating qualification.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of trust, deed to
secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Pooled Mortgage Loan, the
following documents collectively:
(i) the original executed Mortgage Note, endorsed (either on the face
thereof or pursuant to a separate allonge) "Pay to the order of LaSalle Bank
National Association, as Trustee for the registered holders of Bear Xxxxxxx
Commercial Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates, 2004-PWR6, without recourse, representation or warranty" or in
blank, and further showing a complete, unbroken chain of endorsement from
the originator; or alternatively, if the original executed Mortgage Note has
been lost, a lost note affidavit and indemnity with a copy of such Mortgage
Note;
(ii) an original or a copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof prior to the
assignment to the Trustee, in each case (unless the particular item has been
delivered to but not returned from the applicable recording office) with
evidence of recording indicated thereon; provided that if the original (or,
in the case of the Non-Trust-Serviced Pooled Mortgage Loan, a copy) of the
Mortgage cannot be delivered with evidence of recording thereon on or prior
to the 90th day following the Closing Date because of a delay caused by the
public recording office where such original Mortgage has been
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delivered for recordation, or because the public recording office retains
the original or because such original Mortgage has been lost, there shall be
delivered to the Trustee or a Custodian on its behalf a true and correct
copy of such Mortgage, together with (A) in the case of a delay caused by
the public recording office, an Officer's Certificate of the applicable
Pooled Mortgage Loan Seller or a statement from the title agent to the
effect that such original Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation or retained by the appropriate
public recording office, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the original or a copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee (which, in the
case of each related Mortgage that has been recorded in the name of MERS or
its designee (each such Mortgage a "Designated MERS Mortgage"), may be
MERS), if any, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of recording
thereon;
(iv) except in the case of the Non-Trust-Serviced Pooled Mortgage Loan,
an original executed assignment, in recordable form (except for recording
information not yet available if the instrument being assigned has not been
returned from the applicable recording office), of (A) the Mortgage and (B)
any related Assignment of Leases (if such item is a document separate from
the Mortgage), in favor of "LaSalle Bank National Association, in its
capacity as Trustee for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities II Inc., Commercial Mortgage Pass-Through Certificates,
Series 2004-PWR6" or, in the case of the 11 Penn Plaza Pooled Mortgage Loan,
in favor of "LaSalle Bank National Association, in its capacity as Trustee
for the registered holders of Bear Xxxxxxx Commercial Mortgage Securities II
Inc., Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6, and
in its capacity as lead lender on behalf of the 11 Penn Plaza Non-Pooled
Pari Passu Companion Noteholder" (or, in each case, a copy thereof,
certified to be the copy of such assignment submitted for recording);
provided, however, that, if the related Mortgage is a Designated MERS
Mortgage, no assignment of Mortgage or any related Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered and
instead, the related Pooled Mortgage Loan Seller shall take all actions as
are necessary to cause the Trustee to be shown as, and the Trustee shall
take all actions necessary to confirm (and shall place into the Mortgage
File such confirmation in writing from MERS) that it is shown as, the sole
owner of the related Mortgage and any related Assignment of Leases on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(v) an original or a copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee (which, in the
case of a Designated MERS Mortgage, may be MERS), if any;
(vi) except in the case of the Non-Trust-Serviced Pooled Mortgage Loan,
an original assignment of any related Security Agreement (if such item is a
document separate from the Mortgage) executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the originator, in favor
of "LaSalle Bank National Association, in its capacity as Trustee for the
registered holders of Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6" (or, in the
case of the 11 Penn Plaza Pooled Mortgage Loan, in favor of "LaSalle Bank
National Association, in its capacity as Trustee for the registered holders
of Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR6, and in its capacity as lead
lender on behalf of the 11 Penn Plaza Non-Pooled Pari Passu Companion
Noteholder"), which assignment may (in any case) be included as part of the
corresponding assignment of Mortgage referred to in clause (iv) above;
provided, however, that, if the related Mortgage is a Designated MERS
Mortgage, no assignment of a related Security Agreement in favor of the
Trustee will be required to be prepared or delivered and instead, the
related Pooled Mortgage Loan
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Seller shall take all actions as are necessary to cause the Trustee to be
shown as, and the Trustee shall take all actions necessary to confirm (and
shall place into the Mortgage File such confirmation in writing from MERS)
that it is shown as, the sole owner of the related Mortgage on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS;
(vii) originals or copies of any assumption, modification, written
assurance, consolidation, extension and substitution agreements, if any,
with evidence of recording thereon if the applicable document or instrument
being modified or assumed, was recorded (unless the particular item has not
been returned from the applicable recording office), in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any related
security document have been materially modified or the Mortgage Loan has
been assumed;
(viii) the original or a copy of the policy or certificate of lender's
title insurance issued in connection with such Mortgage Loan (or, if the
policy has not yet been issued, an original or copy of a written commitment
"marked-up" at the closing of such Mortgage Loan, interim binder or the pro
forma title insurance policy, in each case evidencing a binding commitment
to issue such policy);
(ix) (A) filed copies (with evidence of filing) of any prior effective
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
related Pooled Mortgage Loan Seller had possession of such UCC Financing
Statements prior to the Closing Date) and (B) except in the case of the
Non-Trust-Serviced Pooled Mortgage Loan, an original assignment thereof, in
form suitable for filing, in favor of "LaSalle Bank National Association, in
its capacity as Trustee for the registered holders of Bear Xxxxxxx
Commercial Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates, 2004-PWR6" (or, in the case of the 11 Penn Plaza Pooled
Mortgage Loan, in favor of "LaSalle Bank National Association, in its
capacity as Trustee for the registered holders of Bear Xxxxxxx Commercial
Mortgage Securities II Inc., Commercial Mortgage Pass-Through Certificates,
Series 2004-PWR6, and in its capacity as lead lender on behalf of the 11
Penn Plaza Non-Pooled Pari Passu Companion Noteholder"); provided, however,
that if the related Mortgage is a Designated MERS Mortgage, no UCC Financing
Statement in favor of the Trustee will be required to be prepared or
delivered and instead, the related Pooled Mortgage Loan Seller shall take
all actions as are necessary to cause the Trustee to be shown as, and the
Trustee shall take all actions necessary to confirm (and shall place into
the Mortgage File such confirmation in writing from MERS) that it is shown
as, for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS, the sole owner of any related UCC
Financing Statements on record with the applicable filing office;
(x) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the original or
a copy of the Ground Lease relating to such Mortgage Loan, together with a
notice to the related ground lessor of the transfer of the Mortgage Loan to
the Trust or the Trustee on its behalf;
(xi) except in the case of the Non-Trust-Serviced Pooled Mortgage Loan,
any original documents not otherwise described in the preceding clauses of
this definition relating to, evidencing or constituting Additional
Collateral (except that in the case of any such documents in the form of a
Letter of Credit, either (x) the "Mortgage File" shall contain the original
of such Letter of Credit or (y) the "Mortgage File" shall contain copies of
such Letter of Credit and the original if any shall be delivered to the
applicable Master Servicer) and, if applicable, the originals or copies of
any intervening assignments thereof;
(xii) an original or a copy of the loan agreement, if any, related to
such Mortgage Loan;
(xiii) an original or a copy of the related guaranty of payment under
such Mortgage Loan, if any;
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(xiv) an original or a copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xv) an original or a copy of the environmental indemnity from the
related Borrower or other party, if any;
(xvi) an original or a copy of any intercreditor agreement or similar
agreement relating to such Mortgage Loan (including, in the case of the 00
Xxxx Xxxxx Loan Group or the Non-Trust-Serviced Pooled Mortgage Loan, the
related Mortgage Loan Group Intercreditor Agreement);
(xvii) an original or a copy of any management agreement with respect
to the related Mortgaged Property if the manager thereunder is not an
Affiliate of the Borrower and the initial Stated Principal Balance of such
Mortgage Loan is greater than $20,000,000;
(xviii) an original or a copy of any master operating lease with
respect to the related Mortgaged Property;
(xix) an original or a copy of any related Environmental Insurance
Policy;
(xx) if the related Mortgaged Property is a hospitality property that
is subject to a franchise or similar arrangement, (a) an original or a copy
of any franchise or similar agreement and (b) either (i) a signed copy of
the comfort letter delivered by the franchisor or similar person for the
benefit of the holder of the Mortgage Loan in connection with the Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage Loan,
together with such instrument(s) of notice or transfer (if any) as are
necessary to transfer or assign to the Trust or the Trustee the benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered by the
franchisor or similar person for the benefit of the holder of the Mortgage
Loan in connection with such origination or acquisition of the Mortgage
Loan, together with a signed copy or a fax copy of a new comfort letter (in
substantially the same form and substance as the comfort letter delivered in
connection with such origination or acquisition) by the franchisor or
similar person for the benefit of the Trust or the Trustee (and, if a fax
copy of a new comfort letter is delivered, then the original copy shall be
included in the "Mortgage File" promptly following receipt thereof by the
related Pooled Mortgage Loan Seller); and
(xxi) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection with the origination
of such Mortgage Loan (which checklist may be in a reasonable form selected
by the related Pooled Mortgage Loan Seller);
provided, however, that (A) 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 a Custodian on its behalf for documents
described in clauses (vi), (vii) and (ix) through (xx) of this definition, shall
be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence (and the Trustee
or such Custodian, as the case may be, shall be deemed to have actual knowledge
of the existence of any document listed on the related Mortgage File Checklist);
(B) the "Mortgage File" for each Pooled Mortgage Loan that is included in the
Serviced Mortgage Loan Group shall include a photocopy of the executed Mortgage
Note for each Serviced Non-Pooled Mortgage Loan that is included in such
Serviced Mortgage Loan Group; and (C) the "Mortgage File" for the
Non-Trust-Serviced Pooled Mortgage Loan shall also include a copy of the
Non-Trust Servicing Agreement in effect as of the Closing Date and photocopies
of all transfer documents comparable to those documents described in clauses
(iv), (vi) and (ix)(B) of this definition (originals of which were delivered to
the applicable trustee under the Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the definition
of "Mortgage File".
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"Mortgage Loan": Any Pooled Mortgage Loan or Non-Pooled Mortgage Loan.
As used herein, the term "Mortgage Loan" includes the related Mortgage Loan
Documents.
"Mortgage Loan Documents": With respect to any Mortgage Loan, the
documents included or required to be included, as the context may require, in
the related Mortgage File and Servicing File.
"Mortgage Loan Group": Each of the 00 Xxxx Xxxxx Loan Group and the
Lincoln Square Loan Group, as applicable.
"Mortgage Loan Group Intercreditor Agreement": Each of the 00 Xxxx
Xxxxx Intercreditor Agreement and the Lincoln Square Intercreditor Agreement, as
applicable.
"Mortgage Note": The original executed promissory note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": All of the Pooled Mortgage Loans and any successor REO
Pooled Mortgage Loans, collectively, as of any particular date of determination.
"Mortgage Rate": With respect to each Mortgage Loan (and any successor
REO Mortgage Loan with respect thereto), the related annualized 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, as such rate may be modified in accordance with Section 3.20
(or, in the case of the Non-Trust-Serviced Pooled Mortgage Loan, by the
Non-Trust Master Servicer or the Non-Trust Special Servicer in accordance with
the applicable Non-Trust Servicing Agreement) or in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower. In
the case of each ARD Mortgage Loan, the related Mortgage Rate shall increase in
accordance with the related Mortgage Note if the particular loan is not paid in
full by its Anticipated Repayment Date.
"Mortgaged Property": Individually and collectively, as the context may
require, each real property (together with all improvements and fixtures
thereon) subject to the lien of a Mortgage and constituting collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if and
when the context may require, "Mortgaged Property" shall mean, collectively, all
the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"Mortgagee": The holder of legal title to any Mortgage Loan, together
with any third parties through which such holder takes actions with respect to
such Mortgage Loan.
"Nationwide": Nationwide Life Insurance Company, or its successor in
interest.
"Nationwide Pooled Mortgage Loan": Any Pooled Mortgage Loan that is
either an Original Nationwide Pooled Mortgage Loan or a Replacement Pooled
Mortgage Loan that was delivered under the Nationwide Pooled Mortgage Loan
Purchase Agreement in substitution for an Original Nationwide Pooled Mortgage
Loan.
"Nationwide Pooled Mortgage Loan Purchase Agreement": That certain
Pooled Mortgage Loan Purchase Agreement dated as of December 8, 2004, between
Nationwide as seller and the Depositor as purchaser.
"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 (and prepayment resulting from the receipt of Insurance
Proceeds or Condemnation Proceeds) on the Pooled Mortgage Loans during the
related Collection Period, exceeds (b) the aggregate amount of the Compensating
Interest Payments remitted by the Master Servicers pursuant to Section 3.19(c)
on the Master Servicer Remittance Date related to such Distribution Date.
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"Net Cash Flow": With respect to any Mortgaged Property, the total
operating revenues derived from such Mortgaged Property, minus the total fixed
and variable operating expenses, capital expenditures such as reserves, tenant
improvements and leasing commissions, incurred in respect of such Mortgaged
Property (subject to adjustments for, among other things, (i) non-cash items
such as depreciation and amortization, and (ii) debt service on loans secured by
the Mortgaged Property).
"Net Default Charges": With respect to any Pooled Mortgage Loan or
successor REO Pooled Mortgage Loan, the Default Charges referred to in clause
third of Section 3.28(a), which are payable to the applicable Master Servicer as
Additional Master Servicing Compensation or the Special Servicer as Additional
Special Servicing Compensation. "Net Investment Earnings": With respect to any
Investment Account 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 Investment Account (exclusive, in the case of a
Servicing Account, a Reserve Account or the Defeasance Deposit Account, of any
portion of such interest or other income payable to a Borrower in accordance
with the related Mortgage Loan Documents and applicable law), exceeds the
aggregate of all losses and costs, if any, incurred during such Collection
Period in connection with the investment of such funds in accordance with
Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve Account
or the Defeasance Deposit Account, of any portion of such losses that were
incurred in connection with investments made for the benefit of a Borrower).
"Net Investment Loss": With respect to any Investment Account 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 Investment Account for the benefit of a Master Servicer, the
Special Servicer or the Certificate Administrator, as applicable, in accordance
with Section 3.06 (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such losses that
were incurred in connection with investments made for the benefit of a Borrower,
and other than losses of what would otherwise have constituted interest or other
income earned on such funds), exceeds the aggregate of all interest and other
income realized during such Collection Period in connection with the investment
of such funds for the benefit of such Master Servicer, the Special Servicer or
the Certificate Administrator, as applicable, in accordance with Section 3.06;
provided that, in the case of any Investment Account and any particular
investment of funds in such Investment Account, Net Investment Loss shall not
include any loss with respect to such investment which is incurred solely as a
result of the insolvency of the federal or state chartered depositary
institution or trust company at which such Investment Account is maintained, so
long as such depositary institution or trust company (a) satisfied the
qualifications set forth in the definition of "Eligible Account" both at the
time such investment was made and as of a date not more than 30 days prior to
the date of such loss and (b) is not the same Person as the Person that made the
relevant investment.
"Net Liquidation Proceeds": The excess, if any, of all Liquidation
Proceeds Received by the Trust with respect to any particular Specially Serviced
Mortgage Loan or Administered REO Property, over the amount of all Liquidation
Expenses incurred with respect thereto and all related Servicing Advances
reimbursable therefrom.
"Net Mortgage Rate": With respect to (i) any Pooled Mortgage Loan (or
any successor REO Pooled Mortgage Loan with respect thereto), the rate per annum
equal to (a) the related Mortgage Rate minus (b) the related Administrative Fee
Rate and, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, the related Post-ARD Additional Interest Rate, and (ii) the Serviced
Non-Pooled Mortgage Loans (or any successor REO Mortgage Loan with respect
thereto), the rate per annum equal to (a) the related Mortgage Rate minus (b)
the related Master Servicing Fee Rate.
"New Lease": Any lease of an Administered REO Property entered into at
the direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Trustee.
"Non-Pooled Mortgage Loan": Any mortgage loans (if any), other than a
Pooled Mortgage Loan, that is part of a split loan structure that includes a
Pooled Mortgage Loan as identified in the Preliminary Statement hereto
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(whether or not such split loan structure is principally serviced and
administered under this Agreement). Only the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan and the Lincoln Square Non-Pooled Pari Passu Companion Loans
constitute Non-Pooled Mortgage Loans under this Agreement.
"Non-Pooled Noteholder": The holder of any Non-Pooled Mortgage Loan.
"Non-Pooled Pari Passu Companion Loan": Any of the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan and the Lincoln Square Non-Pooled Pari
Passu Companion Loans.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance (including any
Unliquidated Advance that constitutes a Nonrecoverable P&I Advance) or
Nonrecoverable Servicing Advance (including any Unliquidated Advance that
constitutes a Nonrecoverable Servicing Advance).
"Nonrecoverable P&I Advance": As evidenced by the Officer's Certificate
and supporting documentation contemplated by Section 4.03(c), any P&I Advance,
or any Unliquidated Advance in respect of a prior P&I Advance, previously made
and any P&I Advance contemplated to be made in respect of any Pooled Mortgage
Loan or related successor REO Pooled Mortgage Loan that, as determined by the
applicable Master Servicer or, if applicable, by the Trustee or the Fiscal
Agent, or by the Special Servicer pursuant to the second paragraph of Section
4.03(c), in its reasonable, good faith judgment, will not be ultimately
recoverable, or in fact was not ultimately recovered, from late payments,
Default Charges, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
or any other recovery on or in respect of such Mortgage Loan or the related REO
Property (without giving effect to potential recoveries on deficiency judgments
or recoveries from guarantors). In the case of a Cross-Collateralized Mortgage
Loan, such recoverability determination shall take into account the
cross-collateralization of the related Cross-Collateralized Group. In connection
with each Pooled Mortgage Loan that is part of a Mortgage Loan Group that
includes a Non-Pooled Pari Passu Companion Loan, if the applicable Master
Servicer receives a written notice described in clause (i) of the third
paragraph of Section 4.03(c) to the effect that the master servicer or other
comparable party responsible for debt service advances with respect to such
Non-Pooled Pari Passu Companion Loan under the related pooling and servicing
agreement (pursuant to which securities were issued that are rated by at least
one national statistical rating organization) has determined, pursuant to such
agreement, that any debt service advance made or to be made with respect to such
Non-Pooled Pari Passu Companion Loan (or any successor REO mortgage loan with
respect thereto) would not ultimately be recoverable out of collections on such
Mortgage Loan (or such REO mortgage loan), then any xxxxxxxxxxx X&X Advance on
the related Pooled Mortgage Loan (or any successor REO Mortgage Loan) under this
Agreement shall be deemed to constitute a Nonrecoverable Advance,
notwithstanding the absence of any determination (as otherwise contemplated
above and by Section 4.03(c)) by any party hereto that any prior P&I Advance or
any xxxxxxxxxxx X&X Advance on such Pooled Mortgage Loan constitutes a
Nonrecoverable Advance, and such Master Servicer (or the Trustee or the Fiscal
Agent, if applicable) shall not make any such xxxxxxxxxxx X&X Advance unless
such Master Servicer (or the Trustee or the Fiscal Agent, if applicable) has
consulted with such other master servicer or comparable party and they both
agree that circumstances with respect to such Mortgage Loan have changed such
that a proposed future P&I Advance would not be a Nonrecoverable Advance.
Notwithstanding the preceding sentence, each party to this Agreement with the
discretion to determine that a P&I Advance constitutes a Nonrecoverable Advance
(as otherwise contemplated above and by Section 4.03(c)) shall continue to have
such discretion.
"Nonrecoverable Servicing Advance": As evidenced by the Officer's
Certificate and supporting documentation contemplated by Section 3.11(h), any
Servicing Advance, or any Unliquidated Advance in respect of a prior Servicing
Advance, previously made, and any Servicing Advance proposed to be made, in
respect of any Mortgage Loan or REO Property that, as determined by the
applicable Master Servicer or, if applicable, the Trustee or the Fiscal Agent,
in its reasonable, good faith judgment, will not be ultimately recoverable, or
in fact was not ultimately recovered, from late payments, Default Charges,
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or any other
recovery on or in respect of such Mortgage Loan or such REO Property (without
giving effect to potential recoveries on deficiency judgments or recoveries from
guarantors). In the case of a Cross-Collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related Cross-Collateralized Group.
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"Non-Registered Certificate": Any Certificate that has not been subject
to registration under the Securities Act. As of the Closing Date, the Class X-1,
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 P, Class Q, Class R and Class V Certificates
are Non-Registered Certificates.
"Non-Trust Master Servicer": With respect to the Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the Non-Trust Servicing
Agreement.
"Non-Trust-Serviced Mortgage Loan Group": Any Mortgage Loan Group that
is primarily serviced and administered under the pooling and servicing agreement
for another commercial mortgage securitization trust. Only the Lincoln Square
Loan Group constitutes a Non-Trust-Serviced Mortgage Loan Group.
"Non-Trust-Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan
that is part of a Non-Trust-Serviced Mortgage Loan Group. Only the Lincoln
Square Pooled Mortgage Loan constitutes a Non-Trust-Serviced Pooled Mortgage
Loan.
"Non-Trust Servicing Agreement": With respect to the Non-Trust-Serviced
Pooled Mortgage Loan and the Non-Trust-Serviced Mortgage Loan Group of which it
is a part, the separate agreement pursuant to which the Non-Trust-Serviced
Pooled Mortgage Loan and the related Non-Pooled Pari Passu Companion Loan are
(or, if applicable, any related REO Property is) to be principally serviced and
administered, which agreement is the Series 0000-XXX0 XXX.
"Non-Trust Special Servicer": With respect to the Non-Trust-Serviced
Pooled Mortgage Loan, the applicable special servicer under the Non-Trust
Servicing Agreement.
"Non-United States Tax Person": Any Person other than a United States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of
a Master Servicer or the Special Servicer or a Responsible Officer of the
Certificate Administrator, the Trustee or the Fiscal Agent, as the case may be,
or, with respect to any other Person, a certificate signed by any of the
Chairman of the Board, the Vice Chairman of the Board, the President, any Vice
President or Managing Director, an Assistant Vice President or any other
authorized officer (however denominated) or another officer customarily
performing functions similar to those performed by any of the above designated
officers or, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Opinion of Counsel": A written opinion of counsel (who must, in the
case of any such opinion relating to the taxation of the Trust Fund or any
portion thereof, the status of any REMIC Pool as a REMIC, the status of either
Grantor Trust Pool as a Grantor Trust for taxation purposes or a resignation
under Section 6.04, be Independent counsel, but who otherwise may be salaried
counsel for the Depositor, the Certificate Administrator, the Trustee, the Tax
Administrator, the Fiscal Agent, either Master Servicer or the Special
Servicer), which written opinion is acceptable and delivered to the addressee(s)
thereof and which opinion of counsel, except as provided herein, shall not be at
the expense of the Certificate Administrator, the Trustee or the Trust Fund.
"Option Period": As defined in Section 3.18(c).
"Option Price": As defined in Section 3.18(c).
"Original BSCMI Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-B.
"Original Nationwide Pooled Mortgage Loans": The mortgage loans
initially identified on the schedule attached hereto as Schedule I-D.
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"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"Original Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A, Schedule I-B,
Schedule I-C and Schedule I-D.
"Original WFB Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-C.
"Other Crossed Loans": As defined in Section 2.03(b).
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": In the case of any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": With respect to any Pooled Mortgage Loan or REO Pooled
Mortgage Loan (including the Non-Trust-Serviced Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan thereto), any advance made by the applicable
Master Servicer, the Trustee or the Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date": The Business Day preceding each Distribution Date.
"PAR": Prudential Asset Resources, Inc. or its successor in interest.
"Pass-Through Rate": The per annum rate at which interest accrues in
respect of any Class of Regular Interest Certificates during any Interest
Accrual Period, as set forth in or otherwise calculated in accordance with
Section 2.17(f).
"Past Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that such Monthly Payment or Assumed
Monthly Payment remains unpaid past its Due Date and past any applicable grace
period for such Monthly Payment or Assumed Monthly Payment.
"Percentage Interest": With respect to (a) any Regular Interest
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 initial Class Principal Balance or initial Class Notional Amount,
as the case may be, of the relevant Class as of the Closing Date; and (b) any
Class R or Class V Certificate, the percentage interest in distributions to be
made with respect to the relevant Class, as specified on the face of such
Certificate.
"Performance Certification": As defined in Section 8.15(b).
"Performing Party": As defined in Section 8.15(b).
"Performing Serviced Mortgage Loan": Any Serviced Mortgage Loan that is
not a Specially Serviced Mortgage Loan.
"Permitted Investments": Any one or more of the following obligations
or securities:
(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, provided that each such
obligation is backed by the full faith and credit of the United
States;
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(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the
party agreeing to repurchase such obligations are at the time of
investment rated in the highest short-term debt rating category
of: (x) in the case of an investment being made with funds that do
not relate in whole or in part to the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Trustee by such Rating
Agency), (y) in the case of an investment being made with funds
that relate in whole or in part to the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan and also relate to one or more Pooled
Mortgage Loans, each Rating Agency for the Rated Certificates (or,
in the case of any such Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency) and also
of each applicable Rating Agency for the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities (or, in the case of any such
Rating Agency, have such lower rating as will not result in an
Adverse Rating Event with respect to any class of 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities rated by such
applicable Rating Agency), as confirmed in writing to the Trustee
by such Rating Agency) or (z) in the case of an investment being
made with funds that relate solely to the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan and do not relate to one or more Pooled
Mortgage Loans, each applicable Rating Agency for the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities (or, in the
case of any such Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any class of 11
Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated
by such applicable Rating Agency as confirmed in writing to the
Trustee by such Rating Agency);
(iii) federal funds, unsecured uncertificated certificates of deposit,
time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations
of such bank or trust company are at the time of investment rated
in the highest short-term debt rating category of: (x) in the case
of an investment being made with funds that do not relate in whole
or in part to the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan, each Rating Agency for the Rated Certificates (or, in the
case of any such Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any Class of
Rated Certificates rated by such Rating Agency, as confirmed in
writing to the Trustee by such Rating Agency), (y) in the case of
an investment being made with funds that relate in whole or in
part to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan and
also relate to one or more Pooled Mortgage Loans, each Rating
Agency for the Rated Certificates (or, in the case of any such
Rating Agency, have such lower rating as will not result in an
Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, as confirmed in writing
to the Trustee by such Rating Agency) and also of each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities (or, in the case of any such Rating
Agency, have such lower rating as will not result in an Adverse
Rating Event with respect to any class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable
Rating Agency, as confirmed in writing to the Trustee by such
Rating Agency) or (z) in the case of an investment being made with
funds that relate solely to the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan and do not relate to one or more Pooled
Mortgage Loans, each applicable Rating Agency for the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities (or, in the
case of any such Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any class of 11
Penn Plaza Non-Pooled Pari Passu Companion Loan Securities (if
rated by such applicable Rating Agency), as confirmed in writing
to the Trustee by such Rating Agency);
(iv) commercial paper of any corporation incorporated under the laws of
the United States or any state
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thereof (or of any corporation not so incorporated, provided that
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), provided that such
commercial paper is rated in the highest short-term debt rating
category of: (x) in the case of an investment being made with
funds that do not relate in whole or in part to the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan, each Rating Agency for the
Rated Certificates (or, in the case of any such Rating Agency,
have such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Rated Certificates rated by
such Rating Agency, as confirmed in writing to the Trustee by such
Rating Agency), (y) in the case of an investment being made with
funds that relate in whole or in part to the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan and also relate to one or
more Pooled Mortgage Loans, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Trustee by such Rating
Agency) and also of each applicable Rating Agency for the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities (or, in the
case of any such Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any class of 11
Penn Plaza Non-Pooled Pari Passu Companion Loan Securities (if
rated by such applicable Rating Agency), as confirmed in writing
to the Trustee by such Rating Agency) or (z) in the case of an
investment being made with funds that relate solely to the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan and do not relate to
one or more Pooled Mortgage Loans, each applicable Rating Agency
for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities (or, in the case of any such Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with
respect to any class of 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency,
as confirmed in writing to the Trustee by such Rating Agency);
(v) units of money market funds (including those managed or advised by
the Certificate Administrator or its Affiliates) which maintain a
constant net asset value, provided that such units of money market
funds are rated in the highest applicable rating category of: (x)
in the case of an investment being made with funds that do not
relate in whole or in part to the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates rated by such Rating
Agency, as confirmed in writing to the Certificate Administrator
by such Rating Agency), (y) in the case of an investment being
made with funds that relate in whole or in part to the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan and also relate to one
or more Pooled Mortgage Loans, each Rating Agency for the Rated
Certificates (or, in the case of any such Rating Agency, have such
lower rating as will not result in an Adverse Rating Event with
respect to such Rating Agency and any Class of Rated Certificates,
as confirmed in writing to the Certificate Administrator by such
Rating Agency) and also of each applicable Rating Agency for the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities (or,
in the case of any such Rating Agency, have such lower rating as
will not result in an Adverse Rating Event with respect to any
class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities (if rated by such applicable Rating Agency), as
confirmed in writing to the Certificate Administrator by such
Rating Agency) or (z) in the case of an investment being made with
funds that relate solely to the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan and do not relate to one or more Pooled
Mortgage Loans, each applicable Rating Agency for the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities (or, in the
case of any such Rating Agency, have such lower rating as will not
result in an Adverse Rating Event with respect to any class of 11
Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated
by such applicable Rating Agency, as confirmed in writing to the
Certificate Administrator by such Rating Agency); or
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(vi) any other obligation or security that: (x) in the case of an
investment being made with funds that do not relate in whole or in
part to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, is
acceptable to each Rating Agency for the Rated Certificates (and
will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency, as
confirmed in writing to the Trustee and Certificate Administrator
by such Rating Agency), (y) in the case of an investment being
made with funds that relate in whole or in part to the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan and also relate to one
or more Pooled Mortgage Loans, is acceptable to each Rating Agency
for the Rated Certificates (and will not result in an Adverse
Rating Event with respect to such Rating Agency and any Class of
Rated Certificates, as confirmed in writing to the Trustee and
Certificate Administrator by such Rating Agency) and also to each
applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities (and will not result in an Adverse
Rating Event with respect to any class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities (if rated by such applicable
Rating Agency), as confirmed in writing to the Trustee and
Certificate Administrator by such Rating Agency) or (z) in the
case of an investment being made with funds that relate solely to
the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan and do not
relate to one or more Pooled Mortgage Loans, is acceptable to each
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities (and will not result in an Adverse
Rating Event with respect to any class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities rated by such applicable
Rating Agency, as confirmed in writing to the Trustee and
Certificate Administrator by such Rating Agency);
provided that each investment described hereunder shall not (A) evidence either
the right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) 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, (C) be sold prior to stated maturity if such sale
would result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code or (D) have an "r" highlighter or
other comparable qualifier attached to its rating; and provided, further, that
each investment described hereunder must have (X) a predetermined fixed amount
of principal due at maturity (that cannot vary or change), (Y) an original
maturity of not more than 365 days and a remaining maturity of not more than 30
days and (Z) except in the case of a Permitted Investment described in clause
(v) of this definition, a fixed interest rate or an interest rate that is tied
to a single interest rate index plus a single fixed spread and moves
proportionately with that index; and provided, further, that each investment
described hereunder must be a "cash flow investment" (within the meaning of the
REMIC Provisions).
"Permitted Transferee": Any Transferee of a Class R Certificate other
than (a) a Disqualified Organization, (b) a Disqualified Non-United States Tax
Person, (c) a Disqualified Partnership, (d) a foreign permanent establishment or
fixed base (within the meaning of any applicable income tax treaty between the
United States and any foreign jurisdiction) of a United States Tax Person or (e)
any other Person as to whom, as determined by the Tax Administrator (based upon
an Opinion of Counsel, obtained at the request of the Tax Administrator at the
expense of such Person or the Person seeking to Transfer a Class R Certificate,
supporting such determination), the Transfer of a Class R Certificate may cause
any REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
"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.
"Phase I Environmental Assessment": A "Phase I assessment" as described
in, and meeting the criteria of, the American Society for Testing and Materials,
plus a radon and asbestos inspection.
"Plan": Any of those employee benefit plans and other retirement
arrangements, including individual retirement accounts and annuities, and Xxxxx
plans and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that are subject to ERISA or Section 4975 of the Code.
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"PMCF": Prudential Mortgage Capital Funding, LLC, or its successor in
interest.
"PMCF Pooled Mortgage Loan": Any Pooled Mortgage Loan that is either an
Original PMCF Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that
was delivered under the PMCF Pooled Mortgage Loan Purchase Agreement in
substitution for an Original PMCF Pooled Mortgage Loan.
"PMCF Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of December 8, 2004, between PMCF as
seller and the Depositor as purchaser.
"Pooled Mortgage Loan": Each of the Original Pooled Mortgage Loans and
Replacement Pooled Mortgage Loans that are from time to time held in the Trust
Fund, including any such mortgage loan that has been wholly or partially
defeased. As used herein, the term "Pooled Mortgage Loan" includes the related
Mortgage Loan Documents.
"Pooled Mortgage Loan Purchase Agreement": Any of the BSCMI Pooled
Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Purchase
Agreement, the PMCF Pooled Mortgage Loan Purchase Agreement and the Nationwide
Pooled Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the four schedules of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule I-B, Schedule
I-C and Schedule I-D, respectively, as any such schedule may be amended from
time to time in accordance with this Agreement. Such schedules shall set forth
the following information with respect to each Pooled Mortgage Loan:
(i) the loan number assigned to the Pooled Mortgage Loan on the
books and records of the related Pooled Mortgage Loan Seller
as of the Closing Date and the identification number assigned
to such Pooled Mortgage Loan in the Prospectus Supplement;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Pooled Mortgage Loan
currently requires only payments of interest but begins to
amortize prior to Stated Maturity Date, on the first Due Date
after amortization begins);
(v) the Mortgage Rate as of the Closing Date and the Interest
Accrual Basis;
(vi) the Stated Maturity Date and the original and remaining term
to Stated Maturity Date (or, in the case of a Pooled Mortgage
Loan that is an ARD Mortgage Loan, the Anticipated Repayment
Date and the original and remaining term to the Anticipated
Repayment Date);
(vii) in the case of a Pooled Mortgage Loan that is a Balloon
Mortgage Loan or an ARD Mortgage Loan, the original and
remaining amortization term;
(viii) whether such Pooled Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, an identification of the Pooled
Mortgage Loans with which such Pooled Mortgage Loan is
cross-collateralized;
(ix) whether such Pooled Mortgage Loan provides for defeasance and
if so, the period during which defeasance may occur;
(x) whether such Pooled Mortgage Loan is secured by a fee simple
interest in the related Mortgaged Property; by the Borrower's
leasehold interest, and a fee simple interest, in the related
Mortgaged
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Property; or solely by a leasehold interest in the related
Mortgaged Property;
(xi) the name of the related Pooled Mortgage Loan Seller;
(xii) the Administrative Fee Rate;
(xiii) the Due Date;
(xiv) the number of grace days before such Pooled Mortgage Loan
requires a late payment charge in connection with a
delinquent Monthly Payment;
(xv) whether there exists (and, if so, the amount of) any letter
of credit that constitutes Additional Collateral;
(xvi) whether repayment of such Pooled Mortgage Loan is guaranteed
by a guarantor; and
(xvii) the initial Master Servicer and the Master Servicing Fee Rate
for such Pooled Mortgage Loan.
"Pooled Mortgage Loan Sellers": Collectively, BSCMI, Nationwide, PMCF
and WFB.
"Post-ARD Additional Interest": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, all interest accrued on the principal
balance of such ARD Mortgage Loan at the Post-ARD Additional Interest Rate (the
payment of which interest shall, under the terms of such ARD Mortgage Loan, be
deferred until the principal balance of such ARD Mortgage Loan and all other
interest thereon has been paid in full), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Rate": With respect to any ARD Mortgage
Loan after its Anticipated Repayment Date, the incremental increase in the
Mortgage Rate for such ARD Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Pooled
Mortgage Loans, the REMIC I Regular Interests, the REMIC II Regular Interests
and the Certificates for federal income tax purposes, the assumptions that each
Pooled Mortgage Loan that is an ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Pooled Mortgage Loan is otherwise
voluntarily prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess": With respect to any Pooled Mortgage Loan
(including the Non-Trust-Serviced Pooled Mortgage Loan) that was subject to a
Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) after the Due Date for such Pooled Mortgage Loan
in any Collection Period, any payment of interest (net of related Master
Servicing Fees (and, in the case of the Non-Trust-Serviced Pooled Mortgage Loan,
the rate per annum at which the master or similar servicing and administrative
fees payable therefrom under the Non-Trust Servicing Agreement accrue as set
forth in the definition of "Administrative Fee Rate") and, in any case, further
net of any portion of such interest that represents Default Charges or Post-ARD
Additional Interest) actually Received by the Trust and collected from the
related Borrower or out of such Insurance Proceeds or Condemnation Proceeds, as
the case may be, and intended to cover the period from and after such Due Date
to, but not including, the date of prepayment (exclusive, for the avoidance of
doubt, of any related Prepayment Premium or Yield Maintenance Charge that may
have been collected).
"Prepayment Interest Shortfall": With respect to any Pooled Mortgage
Loan (including the Non-Trust-Serviced Pooled Mortgage Loan) that was subject to
a Principal Prepayment in full or in part made (or, if resulting from the
application of Insurance Proceeds or Condemnation Proceeds, any other early
recovery of principal received) prior to the Due Date for such Pooled Mortgage
Loan in any Collection Period the amount of interest, to the
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extent not collected from the related Borrower or otherwise (without regard to
any Prepayment Premium or Yield Maintenance Charge that may have been
collected), not Received by the Trust, that would have accrued at a rate per
annum equal to the related Mortgage Rate (net of the Master Servicing Fee Rate
(and, in the case of the Non-Trust-Serviced Pooled Mortgage Loan, the rate per
annum at which the master or similar servicing and administrative fees payable
therefrom under the Non-Trust Servicing Agreement accrue as set forth in the
definition of "Administrative Fee Rate") and, in the case of an ARD Mortgage
Loan after its Anticipated Repayment Date, the related Post-ARD Additional
Interest Rate) on the amount of such Principal Prepayment (or other early
recovery of principal) during the period from the date to which interest thereon
was paid by the related Borrower to, but not including, such Due Date.
"Prepayment Premium": With respect to any Mortgage Loan, any premium,
fee or other additional amount (other than a Yield Maintenance Charge) paid or
payable, as the context requires, by a Borrower in connection with a Principal
Prepayment on, or other early collection of principal of, such Mortgage Loan or
any successor REO Mortgage Loan with respect thereto (including any payoff of a
Mortgage Loan by a mezzanine lender on behalf of the subject Borrower if and as
set forth in the related intercreditor agreement).
"Primary Collateral": With respect to any Cross-Collateralized Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Cross-Collateralized Mortgage Loan and excluding any Mortgaged Property as
to which the related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Cross-Collateralized Mortgaged Loan.
"Primary Servicer": Nationwide or any successor thereto appointed as
provided in the Primary Servicing Agreement.
"Primary Servicing Agreement": That certain primary servicing agreement
dated as of December 1, 2004, between WFB, as the applicable Master Servicer for
the Nationwide Pooled Mortgage Loans, and Nationwide, as primary servicer,
relating to the primary servicing and administration of the Nationwide Pooled
Mortgage Loans.
"Primary Servicing Office": The office of a Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Principal Balance Certificate": Any of the Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P and Class Q Certificates.
"Principal Distribution Amount": With respect to any Distribution Date
other than the Final Distribution Date, an amount (which shall in no event be
less than zero) equal to the excess, if any, of:
(I) the sum of:
(A) the aggregate (without duplication) of the following (such
aggregate of the following amounts described below in this clause (A), the
"Unadjusted Principal Distribution Amount" for such Distribution Date):
(i) all payments of principal (including Principal
Prepayments), including any such payments on Corrected Mortgage Loans,
Received by the Trust with respect to the Pooled Mortgage Loans during
the related Collection Period, in each case exclusive of any portion of
the particular payment that represents a Late Collection of principal
for which a P&I Advance (including any Unliquidated Advance in respect
of a prior P&I Advance) was previously made under this Agreement for a
prior Distribution Date or that represents the principal portion of a
Monthly Payment due on or before the Cut-off Date or on a Due Date
occurring subsequent to the calendar month in which such Distribution
Date occurs,
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(ii) the aggregate of the principal portions of all Monthly
Payments due in respect of the Pooled Mortgage Loans for their
respective Due Dates occurring in the month in which such Distribution
Date occurs, that were Received by the Trust (other than as part of a
Principal Prepayment) prior to the related Collection Period (or, in
the case of any Pooled Mortgage Loan for which the Due Date is on the
5th day of each month, that were Received by the Trust in the calendar
month prior to the calendar month in which the related Distribution
Date occurs but are due during the calendar month in which the related
Distribution Date occurs),
(iii) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds and Insurance Proceeds Received by the Trust with respect to
any Pooled Mortgage Loans during the related Collection Period that
were identified and applied by the applicable Master Servicer as
recoveries of principal (whether as Principal Prepayments or otherwise)
of such Pooled Mortgage Loans in accordance with Section 1.03, in each
case net of any portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off Date or for which
a P&I Advance (including an Unliquidated Advance in respect of a prior
P&I Advance) was previously made under this Agreement for a prior
Distribution Date,
(iv) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues Received by the Trust
with respect to any REO Properties during the related Collection Period
that were identified and applied by the applicable Master Servicer as
recoveries of principal (whether as Principal Prepayments or otherwise)
of the related REO Pooled Mortgage Loans in accordance with Section
1.03, in each case net of any portion of such proceeds and/or revenues
that represents a Late Collection of principal due on or before the
Cut-off Date or for which a P&I Advance (including an Unliquidated
Advance in respect of a prior P&I Advance) was previously made under
this Agreement for a prior Distribution Date, and
(v) the respective principal portions of all P&I Advances
made under this Agreement in respect of the Pooled Mortgage Loans and
any REO Pooled Mortgage Loans with respect to such Distribution Date;
(B) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection Period
that, in each case, represents a delinquent amount as to which an Advance
had been made, which Advance was previously reimbursed during the Collection
Period for a prior Distribution Date as part of a Workout-Delayed
Reimbursement Amount for which a deduction was made under clause (II)(B)
below with respect to such Distribution Date; and
(C) the aggregate amount of any collections received on or in
respect of the Pooled Mortgage Loans during the related Collection Period
that, in each case, is identified and applied by the applicable Master
Servicer (in accordance with Section 1.03) as a recovery of an amount
previously determined (in a Collection Period for a prior Distribution Date)
to have been a Nonrecoverable Advance and for which a deduction was made
under clause (II)(C) below with respect to a prior Distribution Date; less
(II) the sum of:
(A) if any Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds were received with respect to any Pooled Mortgage Loan
or REO Property, and/or any Pooled Mortgage Loan or REO Property is
otherwise liquidated (including by means of a Final Recovery Determination
or the receipt of a full, partial or discounted payoff), during the related
Collection Period, an amount equal to any Special Servicing Fees, Workout
Fees, Liquidation Fees and/or Advance Interest (other than Advance Interest
on Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances paid
from collections and recoveries of principal as described in clause (B)
and/or clause (C) below) with respect to each such Pooled Mortgage Loan or
REO
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Property, as the case may be, that were paid hereunder from a source other
than related Default Charges during the related Collection Period;
(B) the aggregate amount of Workout-Delayed Reimbursement Amounts
(and Advance Interest thereon) that were reimbursed or paid during the
related Collection Period to one or more of the Master Servicers, the
Special Servicer, the Trustee and the Fiscal Agent from principal advances
and collections on the Mortgage Pool pursuant to subsection (iii) of Section
3.05(a)(II); and
(C) the aggregate amount of Nonrecoverable Advances (and Advance
Interest thereon) that were reimbursed or paid during the related Collection
Period to one or more of the Master Servicers, the Special Servicer, the
Trustee and the Fiscal Agent during the related Collection Period from
principal advances and collections on the Mortgage Pool pursuant to
subsection (iv) of Section 3.05(a)(II);
provided, however, that the foregoing provisions of this definition shall be
construed in a manner that is consistent with Section 3.02(d).
With respect to the Final Distribution Date, the "Principal
Distribution Amount" shall equal the aggregate Stated Principal Balance of the
entire Mortgage Pool outstanding immediately prior to the Final Distribution
Date.
In no event shall any portion of any Excess Liquidation Proceeds
constitute a portion of the Principal Distribution Amount for any Distribution
Date.
"Principal Prepayment": Any payment of principal made by the Borrower
on a Mortgage Loan which is received in advance of its scheduled Due Date and
that is not accompanied by an amount of interest (without regard to any
Prepayment Premium, Yield Maintenance Charge and/or Post-ARD Additional Interest
that may have been collected) representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"Private Placement Memorandum": The final Private Placement Memorandum
dated December 8, 2004, relating to certain classes of the Non-Registered
Certificates delivered by the Depositor to Bear, Xxxxxxx & Co. Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and Xxxxx Fargo Brokerage Services, LLC as of the Closing Date.
"Privileged Person": Any of the following: a party to this Agreement,
an Underwriter, a Pooled Mortgage Loan Seller, the Controlling Class
Representative, a Rating Agency, a designee of the Depositor, a
Certificateholder and any Person who certifies to the Certificate Administrator
in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as applicable (which
form shall also be located on, and may be submitted electronically via, the
Certificate Administrator's internet website), that such Person is either a
Certificate Owner or a prospective purchaser of a Certificate or any interest
therein.
"Prospectus": The Base Prospectus and the Prospectus Supplement,
together.
"Prospectus Supplement": That certain prospectus supplement dated
December 8, 2004, relating to the Registered Certificates, that is a supplement
to the Base Prospectus.
"PTCE": Prohibited Transaction Class Exemption.
"PTE": Prohibited Transaction Exemption.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Price": With respect to any Pooled Mortgage Loan (or REO
Property), a cash price equal to the aggregate of (a) the outstanding principal
balance of such Pooled Mortgage Loan (or the related REO Pooled
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Mortgage Loan) as of the date of purchase, (b) all accrued and unpaid interest
on such Pooled Mortgage Loan (or the related REO Pooled Mortgage Loan) at the
related Mortgage Rate (in the case of the Non-Trust-Serviced Pooled Mortgage
Loan, net of the rate at which master or similar servicing and administrative
fees payable under the Non-Trust Servicing Agreement accrue) to, but not
including, the Due Date occurring in the Collection Period (or, in the case of
any Pooled Mortgage Loan for which the Due Date is on the 5th day of each month,
the Due Date occurring in the month in which such Collection Period ends) during
which the applicable purchase or repurchase occurs (exclusive, however, of any
portion of such accrued but unpaid interest that represents Default Interest or,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Additional Interest), (c) all related unreimbursed Servicing Advances (together
with Unliquidated Advances in respect of prior Servicing Advances) and all
related Servicing Advances (without duplication with Unliquidated Advances
described in the immediately preceding parenthetical clause) that were
previously reimbursed out of collections on other Pooled Mortgage Loans and/or
REO Properties relating to other Pooled Mortgage Loans, if any, (d) all accrued
and unpaid Advance Interest with respect to any related Advances, and (e) solely
in the case of a purchase, repurchase or substitution, as applicable, by a
Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage Loan
Purchase Agreement, (i) to the extent not otherwise included in the amount
described in clause (d) of this definition, any unpaid Special Servicing Fees
and other outstanding Additional Trust Fund Expenses with respect to such Pooled
Mortgage Loan (or REO Property) and (ii) to the extent not otherwise included in
the amount described in clause (c) or clause (e) of this definition, any costs
and expenses incurred by a Master Servicer, the Special Servicer, the Trustee or
an agent of any of them (on behalf of the Trust) in enforcing the obligation, if
any, of a Pooled Mortgage Loan Seller to repurchase or replace such Mortgage
Loan or REO Property.
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated appraiser with
at least five years of experience in respect of the relevant geographic location
and property type.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer" or "QIB": A "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage": A qualified mortgage within the meaning of
Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan": In connection with the
replacement of a Defective Pooled Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution: (i) has 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 Defective
Pooled Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs; (ii) has a fixed Mortgage Rate that is not less than, and
not more than one percentage point in excess of, the Mortgage Rate of the
Defective Pooled Mortgage Loan; (iii) has the same monthly Due Date as, and a
grace period for delinquent Monthly Payments that is no longer than, the Due
Date and grace period, respectively, of the Defective Pooled Mortgage Loan; (iv)
accrues interest on the same Interest Accrual Basis as the Defective Pooled
Mortgage Loan; (v) has a remaining term to stated maturity not greater than, and
not more than one year less than, that of the Defective Pooled Mortgage Loan,
(vi) has a Stated Maturity Date not later than two years prior to the Rated
Final Distribution Date; (vii) has a then current loan-to-value ratio not higher
than, and a then current debt service coverage ratio not lower than, the
loan-to-value ratio and debt service coverage ratio, respectively, of the
Defective Pooled Mortgage Loan as of the Closing Date; (viii) has comparable
prepayment restrictions to those of the Defective Pooled Mortgage Loan; (ix)
will comply, as of the date of substitution, with all of the representations
relating to the Defective Pooled Mortgage Loan set forth in or made pursuant to
the related Pooled Mortgage Loan Purchase Agreement; (x) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be
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required under applicable law; and (xi) constitutes a "qualified replacement
mortgage" within the meaning of Section 860G(a)(4) of the Code (as evidenced by
an Opinion of Counsel provided by the related Pooled Mortgage Loan Seller at its
expense); provided, however, that if more than one mortgage loan is to be
substituted for any Defective Pooled Mortgage Loan, then all such proposed
Replacement Pooled Mortgage Loans shall, in the aggregate, satisfy the
requirement specified in clause (i) of this definition and have a weighted
average remaining term to stated maturity that satisfies the condition described
in clause (v) above and each such proposed Replacement Pooled Mortgage Loan
shall, individually, satisfy each of the requirements specified in clauses (ii)
through (iv) and clauses (vi) through (xi) of this definition; and provided,
further, that no mortgage loan shall be substituted for a Defective Pooled
Mortgage Loan unless (a) such prospective Replacement Pooled Mortgage Loan shall
be acceptable to the Controlling Class Representative (or, if there is no
Controlling Class Representative then serving, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its (or their) sole discretion, (b) each Rating Agency for the Rated
Certificates shall have confirmed in writing to the Trustee that such
substitution will not in and of itself result in an Adverse Rating Event with
respect to any Class of Rated Certificates (such written confirmation to be
obtained by the related Pooled Mortgage Loan Seller effecting the substitution)
and (c) the related Pooled Mortgage Loan Seller (at its expense) has delivered
or caused to have been delivered to the Trustee an Opinion of Counsel to the
effect that the substitution of such mortgage loan would not result in an
Adverse REMIC Event with respect to any REMIC Pool. When a Qualifying Substitute
Mortgage Loan is substituted for a Defective Pooled Mortgage Loan, the
applicable Pooled 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.
"Rated Certificate": Any of the Certificates to which a rating has been
assigned by a Rating Agency at the request of the Depositor.
"Rated Final Distribution Date": With respect to each Class of Rated
Certificates, the Distribution Date in November 2041.
"Rating Agency": (i) With respect to each Class of Rated Certificates,
each of Xxxxx'x and S&P and (ii) with respect to any provisions relating to any
11 Penn Plaza Non-Pooled Pari Passu Companion Loan in which 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities evidence interests or by which
they are otherwise backed or secured, each rating agency then rating any related
class of such 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities or
their successors in interest.
"Realized Loss": With respect to:
(1) each Pooled Mortgage Loan as to which a Final Recovery
Determination has been made (or any related successor REO Pooled Mortgage
Loan as to which a Final Recovery Determination has been made as to the
related REO Property), and with respect to each Pooled Mortgage Loan that is
a Corrected Mortgage Loan on which all amounts have been fully paid under
the terms of such Corrected Mortgage Loan (as it may have been modified), an
amount (not less than zero) equal to the excess, if any, of (a) the sum of
(i) the unpaid principal balance of such Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, as of the commencement of the Collection
Period in which the Final Recovery Determination was made or the final
payment was made, as the case may be, plus (ii) without taking into account
the amount described in subclause (1)(b) of this definition, all accrued but
unpaid interest (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, Additional Interest) on
such Pooled Mortgage Loan or such REO Pooled Mortgage Loan, as the case may
be, to but not including the Due Date in the Collection Period in which the
Final Recovery Determination was made or such final payment was made, as the
case may be, plus (iii) without duplication with amounts included under
another subclause above, all related unreimbursed Servicing Advances
(together with Unliquidated Advances in respect of prior Servicing Advances)
and unpaid Liquidation Expenses, plus (iv) the amount of any and all related
Special Servicing Fees, Liquidation Fees and/or Workout Fees with respect to
such Mortgage Loan or successor REO Mortgage Loan, to the extent not
previously reflected as Realized Loss with respect to such Mortgage Loan or
successor REO Mortgage Loan, over (b) all payments and proceeds, if any,
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Received by the Trust in respect of such Pooled Mortgage Loan or, to the
extent allocable to such REO Pooled Mortgage Loan, the related REO Property,
as the case may be, during the Collection Period in which such Final
Recovery Determination was made or such final payment was made, as the case
may be;
(2) each Pooled Mortgage Loan as to which any portion of the
principal or previously accrued interest payable thereunder or any
Unliquidated Advance was canceled in connection with a bankruptcy or similar
proceeding involving the related Borrower or a modification, extension,
waiver or amendment of such Mortgage Loan granted or agreed to by the
applicable Master Servicer or the Special Servicer pursuant to Section 3.20
(or, in the case of the Non-Trust-Serviced Pooled Mortgage Loan, by the
Non-Trust Master Servicer or the Non-Trust Special Servicer pursuant to the
Non-Trust Servicing Agreement), the amount of such principal and/or interest
(other than Default Interest and, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, Additional Interest) or Unliquidated Advance
so canceled; and
(3) each Pooled 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
Borrower or a modification, extension, waiver or amendment of such Pooled
Mortgage Loan granted or agreed to by the applicable Master Servicer or the
Special Servicer pursuant to Section 3.20 (or, in the case of the
Non-Trust-Serviced Pooled Mortgage Loan, by the Non-Trust Master Servicer or
the Non-Trust Special Servicer pursuant to the Non-Trust Servicing
Agreement), the amount of the consequent reduction in the interest portion
of each successive Monthly Payment due thereon (on the related Due Date for
the affected Monthly Payment).
Notwithstanding the foregoing, any allocation of any Realized Loss to
any REMIC I Regular Interest, any REMIC II Regular Interest or any Class of
Principal Balance Certificates, as the case may be, may occur (i) in the case of
any amount described in clause (1) or clause (2) above, solely pursuant to, in
accordance with and to the extent provided by the combination of (x) the
accounting for such amount that occurs under the definition of "Stated Principal
Balance" and (y) the operation of Section 4.04 of this Agreement and (ii) in the
case of any amount described in clause (3) above, solely pursuant to, in
accordance with and to the extent provided by the operation of Section 4.04 of
this Agreement.
"Realized Loss Report": With respect to each Collection Period, the
report in the form of and containing the information provided for on Exhibit E-4
hereto. The Realized Loss Report shall be in Excel format or such other format
as is reasonably acceptable to the Master Servicers, the Servicer Report
Administrator, the Trustee, the Certificate Administrator and the Controlling
Class Representative.
"Received by the Trust": In the case of: (a) the Non-Trust-Serviced
Pooled Mortgage Loan or any REO Property related thereto, received by the
Trustee (or the applicable Master Servicer on behalf of the Trustee), as holder
of the Mortgage Note for such Non-Trust-Serviced Pooled Mortgage Loan, on behalf
of the Trust; and (b) any Serviced Mortgage Loan or related REO Property,
received by a Master Servicer (or any Sub-Servicer thereof), the Special
Servicer (or any Sub-Servicer thereof) or the Trustee, as the case may be, on
behalf of the Trust and/or, in connection with the Serviced Mortgage Loan Group,
the related Serviced Non-Pooled Mortgage Loan Noteholder(s).
"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.
"Reference Rate": With respect to any Interest Accrual Period, the
applicable rate per annum set forth on the schedule attached hereto as Schedule
IV.
"Registered Certificate": Any Certificate that has been the subject of
registration under the Securities Act. As of the Closing Date, the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class X-2 and Class A-J
Certificates constitute Registered Certificates.
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"Regular Interest Certificate": Any of the Interest Only Certificates
and the Principal Balance Certificates.
"Regulation S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of the United
States in reliance on Regulation S, a single global Certificate, or multiple
global Certificates collectively, in definitive, fully registered form without
interest coupon, each of which Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United States in
reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum is equal to 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 Trustee, in its sole discretion, 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 Trustee shall select a
comparable interest rate index. In either case, such selection shall be made by
the Trustee in its sole discretion and the Trustee shall notify the Master
Servicers and the Special Servicer in writing of its selection.
"Release Date": The date that is 40 days following the later of (i) the
Closing Date and (ii) the commencement of the initial offering of the
Non-Registered Certificates in reliance on Regulation S.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860A through G of the Code.
"REMIC I": The segregated pool of assets designated as such in Section
2.13(a).
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I. The REMIC I Regular Interests have the
designations and terms provided for in Section 2.13.
"REMIC I Remittance Rate": The per annum rate at which interest accrues
in respect of any REMIC I Regular Interest during any Interest Accrual Period,
as set forth in or otherwise calculated in accordance with Section 2.13(f).
"REMIC I Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I
issued pursuant to this Agreement.
"REMIC II": The segregated pool of assets designated as such in Section
2.15(a).
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and, in each such
case, designated as a "regular interest" (within the meaning of Section
860G(a)(1) of the Code) in REMIC II. The REMIC II Regular Interests have the
designations provided for in the Preliminary Statement hereto. The REMIC II
Regular Interests have the terms provided for in Section 2.15.
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"REMIC II Remittance Rate": The per annum rate at which interest
accrues in respect of any REMIC II Regular Interest during any Interest Accrual
Period, as set forth in or otherwise calculated in accordance with Section
2.15(f).
"REMIC II Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC II
issued pursuant to this Agreement.
"REMIC III": The segregated pool of assets designated as such in
Section 2.17(a).
"REMIC III Component": Any of the separate beneficial ownership
interests in REMIC III issued hereunder, evidenced by a Class of Interest Only
Certificates. The REMIC III Components have the designations provided for in the
Preliminary Statement hereto. The REMIC III Components have the terms provided
for in Section 2.17.
"REMIC III Residual Interest": The sole uncertificated "residual
interest" (within the meaning of Section 860G(a)(2) of the Code) in REMIC III
issued pursuant to this Agreement.
"REMIC Pool": Any of REMIC I, REMIC II or REMIC III.
"REMIC Provisions": The provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and 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.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer, pursuant to and for the benefit of the
Persons specified in Section 3.16(b), which shall be entitled "ARCap Servicing,
Inc. [or the name of any successor Special Servicer], as Special Servicer, on
behalf of LaSalle Bank National Association [or the name of any successor
Trustee], as Trustee, in trust for the registered holders of Bear Xxxxxxx
Commercial Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-PWR6, and [if the account is established for the
deposit of funds received in respect of one or more REO Properties related to
the Serviced Mortgage Loan Group] for the owners of the Serviced Non-Pooled
Mortgage Loan, as their interests may appear, REO Account".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property related to the
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the Non-Trust Servicing
Agreement).
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18 (or, in the case of any REO Property related to the
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the Non-Trust Servicing
Agreement).
"REO Extension" As defined in Section 3.16(a).
"REO Mortgage Loan": The successor mortgage loan to a Mortgage Loan
(including those deemed to be outstanding with respect to a Serviced Non-Pooled
Mortgage Loan or the Non-Trust-Serviced Pooled Mortgage Loan), which successor
mortgage loan is deemed for purposes hereof to be outstanding with respect to
each REO Property. Each REO Mortgage Loan shall be deemed to provide for monthly
payments of principal and/or interest equal to its Assumed Monthly 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
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related REO Property on behalf of the Trust or, if applicable, in the case of
any REO Property related to any Mortgage Loan Group, on behalf of the Trust and
the respective holders of the related Non-Pooled Mortgage Loan(s)). Each REO
Mortgage 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 as of the date
of the related REO Acquisition. All Monthly Payments (other than a Balloon
Payment), Assumed Monthly 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 Mortgage Loan. In addition, all amounts payable
or reimbursable to the applicable 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 any unpaid or unreimbursed
Master Servicing Fees, Special Servicing Fees and Advances (together with
Unliquidated Advances in respect of prior Advances), together with any related
unpaid Advance Interest on such Advances (other than Unliquidated Advances),
shall continue to be payable or reimbursable in the same priority and manner
pursuant to Section 3.05(a) to the applicable Master Servicer, the Special
Servicer, the Trustee, the Fiscal Agent or the Trust, as the case may be, in
respect of an REO Mortgage Loan.
"REO Pooled Mortgage Loan": An REO Mortgage Loan that relates to a
predecessor Pooled Mortgage Loan.
"REO Property": A Mortgaged Property acquired on behalf and in the name
of the Trustee for the benefit of the Certificateholders (and, in the case of
each such Mortgaged Property relating to the Serviced Mortgage Loan Group, also
on behalf of the related Serviced Non-Pooled Mortgage Loan Noteholder(s))
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; provided that a Mortgaged Property that secures the
Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO Property if and
when it is acquired under the Non-Trust Servicing Agreement for the benefit of
the Trustee as the holder of such Non-Trust-Serviced Pooled Mortgage Loan and of
the holder of the related Non-Pooled Pari Passu Companion Loan(s) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with a default or imminent default
of such Non-Trust-Serviced Pooled Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property, other than any income,
profits or proceeds derived from the REO Disposition of such REO Property.
"REO Tax": As defined in Section 3.17(a).
"Replacement Pooled Mortgage Loan": Any Qualifying Substitute Mortgage
Loan that is substituted by a Pooled Mortgage Loan Seller for a Defective Pooled
Mortgage Loan as contemplated by Section 2.03.
"Request for Release": A request signed by a Servicing Officer of, as
applicable, a Master Servicer in the form of Exhibit C-1 attached hereto or the
Special Servicer in the form of Exhibit C-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(a).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to (i) in the case of
fidelity bond coverage provided by such insurance xxxxxxx, "X0" by Xxxxx'x and
"A" by S&P, (ii) in the case of a policy or policies of insurance issued by such
insurance carrier covering loss occasioned by the errors and omissions of
officers and employees, "A2" by Xxxxx'x and "A" by S&P, and (iii) in the case of
any other insurance coverage provided by such insurance xxxxxxx, "X0" by Xxxxx'x
and "A" by S&P; provided, however, that (A) an insurance carrier shall be deemed
to have the applicable claims-paying ability ratings set forth above if the
obligations of such insurance carrier under the related insurance policy are
guaranteed or backed in writing by an entity that has long-term unsecured debt
obligations that are rated not lower than the ratings set forth above or
claims-paying ability
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ratings that are not lower than the ratings set forth above; and (B) an
insurance carrier shall be deemed to have the applicable claims-paying ability
ratings set forth above if the Rating Agency whose rating requirement set forth
in clause (i) or (ii), as applicable, of this definition has not been met has
confirmed in writing that such insurance carrier would not result in an Adverse
Rating Event with respect to any Class of Rated Certificates or, in the case of
insurance coverage being obtained with respect to the 00 Xxxx Xxxxx Mortgaged
Property, with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities (if rated by such Rating Agency), unless (with respect
to policies maintained by Borrowers) a higher claims-paying ability rating is
required under any of the Mortgage Loan Documents.
"Reserve Account": Any of the accounts established and maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Borrower to be held in escrow by or on behalf of the
mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Resolution Extension Period": As defined in Section 2.03(b).
"Responsible Officer": When used (a) with respect to the Certificate
Administrator, any Vice President, any Trust Officer, any Assistant Secretary or
any other officer of the Certificate Administrator customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Agreement; and (b)
with respect to the Fiscal Agent or the Trustee, any Vice President or Trust
Officer thereof.
"Restricted Servicer Reports": Each of the CMSA Servicer Watch List,
the CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet,
the CMSA Financial File, the CMSA Property File and the CMSA Comparative
Financial Status Report.
"Rule 144A Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, a single global Certificate, or multiple global
Certificates collectively, registered in the name of the Depository or its
nominee, in definitive, fully registered form without interest coupons, each of
which Certificates bears a Qualified Institutional Buyer CUSIP number and does
not bear a Regulation S Legend.
"S&P": Standard & 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 other parties hereto, and specific ratings of Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
References herein to "applicable rating category" (other than such references to
"highest applicable rating category") shall, in the case of S&P, be deemed to
refer to such applicable rating category of S&P, without regard to any plus or
minus or other comparable rating qualification.
"Xxxxxxxx-Xxxxx Certification": As defined in Section 8.15(b).
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement, chattel mortgage or similar document or instrument creating in favor
of the holder of such Mortgage a security interest in the personal property
constituting security for repayment of such Mortgage Loan.
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"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-6, Class X-1 or Class X-2 Certificate.
"Series 2004-PWR4 PSA": That certain Pooling and Servicing Agreement
dated as of June 1, 2004, among Bear Xxxxxxx Commercial Mortgage Securities
Inc., as depositor, PAR, as a master servicer, WFB, as a master servicer, ARCap
Servicing, Inc., as general special servicer, WFB, as certificate administrator
and tax administrator, LaSalle, as trustee, ABN AMRO, as fiscal agent, and The
Prudential Insurance Company of America, as Shell Plaza non-pooled subordinate
noteholder, relating to the Bear Xxxxxxx Commercial Mortgage Trust 2004-PWR4,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR4.
"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other than the
Non-Trust-Serviced Pooled Mortgage Loan (and any Non-Pooled Mortgage Loan that
is related to such Non-Trust-Serviced Pooled Mortgage Loan).
"Serviced Mortgage Loan Group": Each group of mortgage loans (if any)
that is part of a split loan structure that is principally serviced and
administered under this Agreement as identified in the Preliminary Statement
hereto.
"Serviced Non-Pooled Mortgage Loan": Each of the mortgage loans (if
any), other than a Pooled Mortgage Loan, that is part of a split loan structure
that is principally serviced and administered under this Agreement as identified
in the Preliminary Statement hereto.
"Serviced Non-Pooled Mortgage Loan Noteholder": The holder of any
Serviced Non-Pooled Mortgage Loan.
"Serviced Non-Pooled Pari Passu Companion Loan": Each of the mortgage
loans (if any), other than a Pooled Mortgage Loan, that is part of a split loan
structure that is principally serviced and administered under this Agreement, is
secured by the same Mortgage encumbering a Pooled Mortgage Loan and is pari
passu in right of payment with that Pooled Mortgage Loan. The Serviced
Non-Pooled Pari Passu Companion Loans are not "Pooled Mortgage Loans" or part of
the Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Serviced Non-Pooled Pari Passu Companion Loan Noteholder": The holder
of the Serviced Non-Pooled Pari Passu Companion Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan.
"Servicer Report Administrator": PAR as a Master Servicer (without
regard to the final sentence of the definition of "Master Servicer") or any
successor thereto appointed as provided herein.
"Servicer Report Administrator Fee": With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the fee designated as such and
payable to the Servicer Report Administrator pursuant to Section 8.05(a).
"Servicer Report Administrator Fee Rate": Five ten-thousands of one
percent (0.0005%) per annum.
"Servicing Account": The account or accounts established and maintained
pursuant to Section 3.03(a).
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"Servicing Advances": All customary, reasonable and necessary
"out-of-pocket" costs and expenses, including reasonable attorneys' fees and
expenses, incurred or to be incurred, as the context requires, by the applicable
Master Servicer or the Special Servicer (or, if applicable, the Trustee or the
Fiscal Agent) in connection with the servicing of a Serviced Mortgage Loan (or,
in the limited circumstances set forth in Section 3.01(g), in connection with
the servicing of the Non-Trust-Serviced Pooled Mortgage Loan) as to which a
default, delinquency or other unanticipated event has occurred or is imminent,
or in connection with the administration of any Administered REO Property,
including:
(1) any such costs and expenses associated with (a) compliance
with the obligations of the applicable Master Servicer and/or the Special
Servicer set forth in Sections 2.03, 3.03(c) and 3.09, (b) the preservation,
insurance, restoration, protection and management of either a Mortgaged
Property securing a Serviced Mortgage Loan or an Administered REO Property,
including the cost of any "force placed" insurance policy purchased by the
applicable Master Servicer or the Special Servicer to the extent such cost
is allocable to a particular Mortgaged Property that the applicable Master
Servicer or the Special Servicer is required to cause to be insured pursuant
to Section 3.07(a), (c) obtaining any Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds in respect of any such Serviced Mortgage
Loan or any Administered REO Property, (d) any enforcement or judicial
proceedings with respect to any such Mortgage Loan, including foreclosures
and similar proceedings, (e) the operation, management, maintenance and
liquidation of any Administered REO Property, (f) obtaining any Appraisal
required to be obtained hereunder, and (g) UCC filings (to the extent that
the costs thereof are not reimbursed by the related Borrower), and
(2) the reasonable and direct out-of-pocket travel expenses
incurred by the Special Servicer in connection with performing inspections
pursuant to Section 3.12(a);
provided that, notwithstanding anything to the contrary, "Servicing Advances"
shall not include (A) allocable overhead of a Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as the case may be, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses, (B) costs incurred
by or on behalf of any such party hereto or any Affiliate thereof in connection
with its purchase of any Mortgage Loan or REO Property pursuant to any provision
of this Agreement or any intercreditor agreement or similar agreement or (C)
costs or expenses expressly required under this Agreement to be borne by a
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent.
"Servicing Advances" shall also include, however, any other expenditure
which is expressly designated as a "Servicing Advance" herein. All Emergency
Advances made by a Master Servicer at the direction of the Special Servicer
hereunder shall be considered "Servicing Advances" for the purposes hereof.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File, but including originals or copies of all
management agreements which are not covered by clause (xvii) of the definition
of "Mortgage File") that are in the possession or under the control of, or that
are required (pursuant to the applicable Pooled Mortgage Loan Purchase
Agreement, this Agreement or otherwise) to be delivered and actually have been
delivered to, as the context may require, the applicable Master Servicer or the
Special Servicer and relating to the origination and servicing of any Mortgage
Loan or the administration of any REO Property and reasonably necessary for the
ongoing administration and/or servicing of the applicable Mortgage Loan,
including any documents delivered by a Pooled Mortgage Loan Seller as described
in clause (i) of Section 2.01(f).
"Servicing Officer": Any officer or employee of a Master Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of Mortgage Loans, whose name and specimen signature appear on a list
of servicing officers furnished by such party to the Certificate Administrator,
the Trustee and the Depositor on the Closing Date, as such list may thereafter
be amended from time to time by such Master Servicer or the Special Servicer, as
the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
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"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Return Date": With respect to any Corrected Mortgage Loan,
the date that servicing thereof is returned by the Special Servicer to the
applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard": With respect to each of the Master Servicers and
the Special Servicer, to service and administer the Serviced Mortgage Loans and
any Administered REO Properties that such party is obligated to service and
administer pursuant to this Agreement in the best interests and for the benefit
of the Certificateholders (or, in the case of the Serviced Mortgage Loan Group,
for the benefit of the Certificateholders and the related Serviced Non-Pooled
Mortgage Loan Noteholders) (as determined by the applicable Master Servicer or
the Special Servicer, as the case may be, in its good faith and reasonable
judgment), as a collective whole, in accordance with applicable law and the
terms of this Agreement, and the respective Mortgage Loans (including, with
respect to the Serviced Mortgage Loan Group, the related Mortgage Loan Group
Intercreditor Agreement, as applicable) and, to the extent consistent with the
foregoing, in accordance with the following standards:
(a) with the same care, skill, prudence and diligence as it
services and administers comparable mortgage loans and manages real
properties on behalf of third parties or on behalf of itself, whichever is
the higher standard with respect to mortgage loans and REO properties that
are comparable to those for which it is responsible hereunder, giving due
consideration to customary and usual standards of practice utilized by
prudent institutional commercial mortgage loan servicers under comparable
circumstances;
(b) with a view to: (i) in the case of a Master Servicer, the
timely collection of all scheduled payments of principal and interest,
including Balloon Payments, under the Serviced Mortgage Loans and the full
collection of all Prepayment Premiums and Yield Maintenance Charges that may
become payable under the Serviced Mortgage Loans, and (ii) in the case of
the Special Servicer and any Serviced Mortgage Loan that is (A) a Specially
Serviced Mortgage Loan or (B) a Serviced Mortgage Loan as to which the
related Mortgaged Property has become an Administered REO Property, the
maximization of recovery on such Mortgage Loan to the Certificateholders
(or, in the case of the Serviced Mortgage Loan Group, to the
Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholders, as applicable), as a collective whole, of principal and
interest, including Balloon Payments, on a present value basis (the relevant
discounting of anticipated collections that will be distributable to the
Certificateholders (or, in the case of the Serviced Mortgage Loan Group, to
the Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholders, as applicable), as a collective whole, to be performed at a
rate determined by the Special Servicer but in no event less than the
related Net Mortgage Rate (or, in the case of the Serviced Mortgage Loan
Group, less than the weighted average of the Net Mortgage Rates for the
Mortgage Loans in such Serviced Mortgage Loan Group)); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or the Special Servicer, as the case may be, or
any of its Affiliates may have with a related Borrower, a Mortgage Loan
Seller or any other party to this Agreement, (ii) the ownership of any
Certificate or any interest in any other Mortgage Loan in a Mortgage Loan
Group by the applicable Master Servicer or the Special Servicer, as the case
may be, or any of its Affiliates, (iii) the obligation of the applicable
Master Servicer to make Advances or otherwise to incur servicing expenses
with respect to any Serviced Mortgage Loan or Administered REO Property (or,
if applicable, to make P&I Advances or (to the limited extent set forth
herein) Servicing Advances with respect to the Non-Trust-Serviced Pooled
Mortgage Loan), (iv) the obligation of the Special Servicer to make, or
direct the applicable Master Servicer to make, Servicing Advances (including
Emergency Advances) or otherwise to incur servicing expenses with respect to
any Serviced Mortgage Loan or Administered REO Property, (v) the right of
the applicable Master Servicer or the Special Servicer, as the case may be,
or any of its Affiliates to receive reimbursement of costs, or the
sufficiency of any compensation payable to it, hereunder or with respect to
any particular transaction, (vi) any ownership, servicing and/or management
by the applicable Master Servicer or the Special Servicer, as the case may
be, or any of its Affiliates, of any other mortgage loans or real property,
(vii) the ownership by the applicable Master Servicer or the Special
Servicer, as the case may be, or any of its Affiliates of any other debt
owed by, or secured by ownership interests in, any of the Borrowers or any
Affiliate
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of a Borrower, and (viii) the obligations of the applicable Master Servicer
or the Special Servicer, as the case may be, or any of its Affiliates to
repurchase any Pooled Mortgage Loan from the Trust Fund, or to indemnify the
Trust Fund, in any event as a result of a Material Breach or a Material
Document Defect;
provided that the foregoing standards shall apply with respect to the
Non-Trust-Serviced Pooled Mortgage Loan and any related REO Property only to the
extent that the applicable Master Servicer or the Special Servicer has any
express duties or rights to grant consent with respect thereto pursuant to this
Agreement.
"Servicing Transfer Event": With respect to any Serviced Mortgage Loan,
the occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
"Special Servicer": ARCap Servicing, Inc. (or its successor in
interest), in its capacity as special servicer with respect to the Mortgage Pool
and any related REO Properties hereunder, or any successor special servicer
appointed as provided herein.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO Property related to
the Non-Trust-Serviced Pooled Mortgage 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 Mortgage Loan (other than any REO Property related to
the Non-Trust-Serviced Pooled Mortgage Loan), 0.25% per annum.
"Specially Designated Defaulted Pooled Mortgage Loan": A Serviced
Pooled Mortgage Loan that both (A) is a Specially Serviced Mortgage Loan and (B)
either (i) is delinquent 120 days or more with respect to any Balloon Payment or
60 days or more with respect to any other Monthly Payment, with such delinquency
to be determined without giving effect to any grace period permitted by the
related Mortgage or Mortgage Note and without regard to any acceleration of
payments under the related Mortgage and Mortgage Note, or (ii) is a Pooled
Mortgage Loan as to which the amounts due thereunder have been accelerated
following any other material default.
"Specially Designated Mortgage Loan Documents": With respect to any
Pooled Mortgage Loan, subject to Section 1.04, the following documents on a
collective basis:
(i) the original executed Mortgage Note or alternatively, if the
original executed Mortgage Note has been lost, a lost note affidavit and
indemnity with a copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage, in each case (unless
the particular item has been sent for recording but has not been returned
from the applicable recording office) with evidence of recording indicated
thereon; provided that if such original Mortgage cannot be delivered with
evidence of recording thereon on or prior to the 90th day following the
Closing Date because of a delay caused by the public recording office where
such original Mortgage has been delivered for recordation or because such
original Mortgage has been lost, there shall be delivered to the Trustee or
a Custodian on its behalf a true and correct copy of such Mortgage, together
with (A) in the case of a delay caused by the public recording office, an
Officer's Certificate of the applicable Pooled Mortgage Loan Seller stating
that such original Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that
such copy is a true and complete copy of the original recorded Mortgage;
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(iii) the original or a copy of any related Assignment of Leases
(if any such item is a document separate from the Mortgage), in each case
(unless the particular item has been sent for recording but has not been
returned from the applicable recorder) with evidence of recording thereon;
(iv) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage Loan (or,
if the policy has not yet been issued, an original or copy of a written
commitment "marked-up" at the closing of such Mortgage Loan, interim binder
or the pro forma title insurance policy, in each case evidencing a binding
commitment to issue such policy);
(v) if a material portion of the interest of the Borrower in the
related Mortgaged Property consists of a leasehold interest, the original or
a copy of the Ground Lease relating to such Mortgage Loan;
(vi) except in the case of the Non-Trust-Serviced Pooled Mortgage
Loan, the original of any Letter of Credit evidencing or constituting
Additional Collateral (provided that the originals of any such Letter of
Credit may be delivered to the applicable Master Servicer with a copy to be
contained in the Mortgage File); and
(vii) if the related Mortgaged Property is a hospitality property
that is subject to a franchise or similar arrangement, (a) an original or a
copy of any franchise or similar agreement and (b) either (i) a signed copy
of the comfort letter delivered by the franchisor or similar person for the
benefit of the holder of the Mortgage Loan in connection with the Pooled
Mortgage Loan Seller's origination or acquisition of the Mortgage Loan,
together with such instrument(s) of notice or transfer (if any) as are
necessary to transfer or assign to the Trust or the Trustee the benefits of
such comfort letter, or (ii) a copy of the comfort letter delivered by the
franchisor or similar person for the benefit of the holder of the Mortgage
Loan in connection with such origination or acquisition of the Mortgage
Loan, together with a signed copy or a fax copy of a new comfort letter (in
substantially the same form and substance as the comfort letter delivered in
connection with such origination or acquisition) by the franchisor or
similar person for the benefit of the Trust or the Trustee (and, if a fax
copy of a new comfort letter is delivered, then the original copy shall be
included in the "Mortgage File" promptly following receipt thereof by the
related Pooled Mortgage Loan Seller).
"Specially Serviced Mortgage Loan": Any Serviced Mortgage Loan as to
which any of the following events has occurred:
(a) the related Borrower has failed to make when due any Balloon
Payment, and the Borrower has not delivered to the applicable Master
Servicer, on or prior to the due date of such Balloon Payment, a written
refinancing commitment from an acceptable lender and reasonably satisfactory
in form and substance to the applicable Master Servicer which provides that
such refinancing will occur within 120 days after the date on which such
Balloon Payment will become due (provided that such Mortgage Loan shall
immediately become a Specially Serviced Mortgage Loan if either (x) such
refinancing does not occur before the expiration of the time period for
refinancing specified in such binding commitment or (y) the applicable
Master Servicer is required to make a P&I Advance in respect of such
Mortgage Loan (or, in the case of any Serviced Non-Pooled Mortgage Loan, in
respect of the Pooled Mortgage Loan included in the same Serviced Mortgage
Loan Group) at any time prior to such a refinancing); or
(b) the related Borrower has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment (other than a
Balloon Payment) required under the related Mortgage Note or the related
Mortgage, which failure has continued unremedied for sixty (60) days; or
(c) the applicable Master Servicer determines (in accordance with
the Servicing Standard) that a default in making any Monthly Payment (other
than a Balloon Payment) or any other material payment (other than a Balloon
Payment) required under the related Mortgage Note or the related Mortgage is
likely to occur in the foreseeable future, and such default is likely to
remain unremedied for at least sixty (60) days beyond the date on which the
subject payment will become due; or the applicable Master Servicer
determines (in
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accordance with the Servicing Standard) that a default in making a Balloon
Payment is likely to occur in the foreseeable future, and such default is
likely to remain unremedied for at least sixty (60) days beyond the date on
which such Balloon Payment will become due (or, if the Borrower has
delivered a written refinancing commitment from an acceptable lender and
reasonably satisfactory in form and substance to the applicable Master
Servicer which provides that such refinancing will occur within 120 days
following the date on which such Balloon Payment will become due, such
Master Servicer determines (in accordance with the Servicing Standard) that
(A) the Borrower is likely not to make one or more Assumed Monthly Payments
prior to such a refinancing or (B) such refinancing is not likely to occur
within 120 days following the date on which such Balloon Payment will become
due); or
(d) there shall have occurred a default (including, in the
applicable Master Servicer's or the Special Servicer's judgment, the failure
of the related Borrower to maintain any insurance required to be maintained
pursuant to the related Mortgage Loan Documents, unless such default has
been waived in accordance with Section 3.07 or Section 3.20 hereof) under
the related Mortgage Loan Documents, other than as described in clause (a),
(b) or (c) above, that may, in the applicable Master Servicer's or the
Special Servicer's good faith and reasonable judgment, materially impair the
value of the related Mortgaged Property as security for such Mortgage Loan
or otherwise materially and adversely affect the interests of
Certificateholders (or, in the case of any Serviced Non-Pooled Mortgage
Loan, the interests of the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), which default has continued unremedied for the applicable
cure period under the terms of such Mortgage Loan (or, if no cure period is
specified, 60 days); or
(e) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar law
or the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall have been entered against the related Borrower and such decree or
order shall have remained in force undischarged or unstayed for a period of
60 days; or
(f) the related Borrower shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings of or
relating to such Borrower or of or relating to all or substantially all of
its property; or
(g) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily suspended
payment of its obligations; or
(h) the applicable Master Servicer or the Special Servicer shall
have received notice of the commencement of foreclosure or similar
proceedings with respect to the related Mortgaged Property.
provided that a Serviced Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, or at such time as such of the following as are applicable occur with
respect to the circumstances identified above that caused such Mortgage Loan to
be characterized as a Specially Serviced Mortgage Loan (and provided that no
other Servicing Transfer Event then exists):
(w) with respect to the circumstances described in clauses (a) and
(b) above, the related Borrower has made three consecutive full and timely
Monthly 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 Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the applicable Master Servicer or the
Special Servicer pursuant to Section 3.20);
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(x) with respect to the circumstances described in clauses (c),
(e), (f), and (g) above, such circumstances cease to exist in the good faith
reasonable judgment, exercised in accordance with the Servicing Standard, of
the Special Servicer;
(y) with respect to the circumstances described in clause (d)
above, such default is cured in the good faith reasonable judgment,
exercised in accordance with the Servicing Standard, of the Special
Servicer; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
Notwithstanding the foregoing, if a Servicing Transfer Event exists as
contemplated above in this definition for any Mortgage Loan in the Serviced
Mortgage Loan Group, it shall be deemed to exist for the other Mortgage Loans in
such Serviced Mortgage Loan Group.
"Specially Serviced Pooled Mortgage Loan": A Serviced Pooled Mortgage
Loan that constitutes a Specially Serviced Mortgage Loan. Notwithstanding
anything herein to the contrary, in no event shall the Non-Trust-Serviced Pooled
Mortgage Loan constitute a Specially Serviced Pooled Mortgage Loan hereunder.
"Startup Day": With respect to each REMIC Pool, the day designated as
such in Section 2.13(a) (in the case of REMIC I), Section 2.15(a) (in the case
of REMIC II) or Section 2.17(a) (in the case of REMIC III), as applicable.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the related Mortgage Note (as in effect on the Closing Date or, in
the case of a Replacement Pooled Mortgage Loan, on the related date of
substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or the Special
Servicer pursuant to Section 3.20 (or, in the case of the Non-Trust-Serviced
Pooled Mortgage Loan, by the Non-Trust Master Servicer or the Non-Trust Special
Servicer pursuant to the Non-Trust Servicing Agreement) and, in the case of an
ARD Mortgage Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Pooled Mortgage Loan
(and any successor REO Pooled Mortgage Loan with respect thereto), a principal
balance which (a) initially shall equal the unpaid principal balance thereof as
of the related Cut-off Date or, in the case of any Replacement Pooled Mortgage
Loan, as of the related date of substitution, in any event after application of
all payments of principal due thereon on or before such date, whether or not
received, and (b) shall be permanently reduced on each subsequent Distribution
Date (to not less than zero) by the sum of:
(i) that portion, if any, of the Unadjusted Principal Distribution
Amount for such Distribution Date that is attributable to such Pooled
Mortgage Loan (or successor REO Pooled Mortgage Loan); and
(ii) the principal portion of any Realized Loss incurred in
respect of such Pooled Mortgage Loan (or successor REO Pooled Mortgage Loan)
during the related Collection Period;
provided that, if a Liquidation Event occurs in respect of any Mortgage Loan or
REO Property, then the "Stated Principal Balance" of such Mortgage Loan or of
the related REO Pooled Mortgage Loan, as the case may be, shall be zero
commencing as of the close of business on the Distribution Date next following
the Collection Period in which such Liquidation Event occurred.
"Sub-Servicer": Any Person with which a Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement in accordance with the terms
hereof.
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"Sub-Servicing Agreement": The written contract between a 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. For the avoidance of doubt, the Primary Servicing
Agreement does not constitute a Sub-Servicing Agreement.
"Substitution Shortfall Amount": In connection with the substitution of
one or more Replacement Pooled Mortgage Loans for any Defective Pooled Mortgage
Loan, the amount, if any, by which the Purchase Price for such Defective Pooled
Mortgage Loan (calculated as if it were to be repurchased, instead of replaced,
on the relevant date of substitution), exceeds the initial Stated Principal
Balance or the initial aggregate Stated Principal Balance, as the case may be,
of such Replacement Pooled Mortgage Loan(s) as of the date of substitution.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Administrator": WFB, in its capacity as tax administrator
hereunder, or any successor tax administrator appointed as herein provided.
"Tax Administrator Fee": The portion of the Trustee Fee payable to the
Tax Administrator in an amount agreed to by the Trustee and the Tax
Administrator.
"Tax Matters Person": With respect to any REMIC Pool, the Person
designated as the "tax matters person" of such REMIC Pool in the manner provided
under Treasury Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(b), be the Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S.
Real Estate Mortgage Investment Conduit Income (REMIC) Tax Return, including
Schedule Q thereto, Quarterly Notice to Residual Interest Holder of REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed on
behalf of each REMIC Pool due to its classification as a REMIC under the REMIC
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 IRS
under any applicable provisions of federal tax law or any other governmental
taxing authority under applicable state or local tax laws.
"Termination Price": As defined in Section 9.01(a).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer of any Ownership
Interest in a Certificate.
"Trust": The trust created hereby.
"Trust Fund": Collectively, all of the assets of all the REMIC Pools
and both of the Grantor Trust Pools.
"Trustee": LaSalle, in its capacity as trustee hereunder, or any
successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Pooled Mortgage Loan and REO Pooled
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a). The Trustee Fee includes the Certificate Administrator Fee and
the Tax Administrator Fee.
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"Trustee Fee Rate": Twenty-three ten-thousandths of one percent
(0.0023%) per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement filed, or to be filed,
pursuant to the UCC.
"Unadjusted Principal Distribution Amount": As defined in the
definition of "Principal Distribution Amount".
"Uncertificated Accrued Interest": As defined in Section 2.13(g) with
respect to any REMIC I Regular Interest for any Interest Accrual Period and in
Section 2.15(g) with respect to any REMIC II Regular Interest for any Interest
Accrual Period.
"Uncertificated Distributable Interest": As defined in Section 2.13(g)
with respect to any REMIC I Regular Interest for any Distribution Date and in
Section 2.15(g) with respect to any REMIC II Regular Interest for any
Distribution Date.
"Uncertificated Principal Balance": The principal balance outstanding
from time to time of any REMIC I Regular Interest (calculated in accordance with
Section 2.13(e) hereof) or any REMIC II Regular Interest (calculated in
accordance with Section 2.15(e) hereof).
"Underwriter Exemption": PTE 90-30 issued to Bear, Xxxxxxx & Co. Inc.,
PTE 90-24 issued to Xxxxxx Xxxxxxx & Co. Incorporated or PTE 90-29 issued to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, each as amended by XXX
00-00, XXX 0000-00 and PTE 2002-41 and as may be subsequently amended following
the Closing Date.
"Underwriters": Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxx Fargo
Brokerage Services, LLC.
"United States Securities Person": Any "U.S. person" as defined in Rule
902(k) of Regulation S.
"United States Tax Person": A citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States, any State thereof or the District of Columbia, an
estate whose income from sources without the United States is includible 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 Tax Persons have the authority to control all substantial decisions of
the trust, all within the meaning of Section 7701(a)(30) of the Code (or, to the
extent provided in the applicable Treasury Regulations, certain trusts in
existence on August 20, 1996 that elect to be treated as United States Tax
Persons).
"Unliquidated Advance": Any Advance previously made by a party hereto
that has been previously reimbursed, as between the Person that made the Advance
hereunder, on the one hand, and the Trust Fund, on the other, as part of a
Workout-Delayed Reimbursement Amount pursuant to subsection (iii) of Section
3.05(a)(II) but that has not been recovered from the Borrower or otherwise from
collections on or the proceeds of the Mortgage Loan or REO Property in respect
of which the Advance was made.
"Unrestricted Servicer Reports": Each of the CMSA Loan Setup File, the
CMSA Loan Periodic Update File, the CMSA Delinquent Loan Status Report, the CMSA
Historical Loan Modification Report, the CMSA Historical Liquidation Report, the
CMSA REO Status Report, the CMSA Loan Level Reserve Report, the CMSA
Reconciliation of Funds Report and the Realized Loss Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
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"USPAP": The Uniform Standards of Professional Appraisal Practices.
"Voting Rights": The voting rights evidenced by the respective
Certificates. At all times during the term of this Agreement, 99.0% of the
Voting Rights shall be allocated among all the Holders of the various Classes of
Principal Balance Certificates in proportion to the respective Class Principal
Balances of such Classes, and 1.0% of the Voting Rights shall be allocated
between the Holders of the Class X-1 Certificates and the Holders of the Class
X-2 Certificates in proportion to the respective Class Notional Amounts of such
Classes. Voting Rights allocated to a particular Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the respective
Percentage Interests evidenced by their respective Certificates. No Voting
Rights shall be allocated to the Class R or Class V Certificateholders.
"Weighted Average REMIC I Remittance Rate": As defined in Section
2.15(f).
"WFB": Xxxxx Fargo Bank, National Association, or its successor in
interest.
"WFB Pooled Mortgage Loan": Any Mortgage Loan that is either an
Original WFB Pooled Mortgage Loan or a Replacement Pooled Mortgage Loan that was
delivered under the WFB Pooled Mortgage Loan Purchase Agreement in substitution
for an Original WFB Pooled Mortgage Loan.
"WFB Pooled Mortgage Loan Purchase Agreement": That certain Pooled
Mortgage Loan Purchase Agreement dated as of December 8, 2004, between WFB as
seller and the Depositor as purchaser.
"Within Grace Period Loan": With respect to any Monthly Payment or
Assumed Monthly Payment due and payable, or deemed due and payable, in respect
of any particular Pooled Mortgage Loan, the status attributable to that Mortgage
Loan by reason of, if applicable, the fact that, although such Monthly Payment
or Assumed Monthly Payment has not been received, the Due Date, together with
any applicable grace period, for such Monthly Payment or Assumed Monthly Payment
has not passed.
"Workout-Delayed Reimbursement Amount": As defined in subsection
(II)(i) of Section 3.05(a).
"Workout Fee": The fee designated as such in, and payable to the
Special Servicer in connection with Corrected Mortgage Loans pursuant to, the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, 1.0%.
"Yield Maintenance Charge": With respect to any Mortgage Loan, any
premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan, calculated, in whole or in
part, pursuant to a yield maintenance formula or otherwise pursuant to a formula
that reflects the lost interest, including any specified amount or specified
percentage of the amount prepaid which constitutes the minimum amount that such
Yield Maintenance Charge may be.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to include
the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP as in effect from time to
time;
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(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to Paragraphs
and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and not
to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts Received by the Trust in respect of any
Cross-Collateralized Group, including any payments from Borrowers, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds (including any such
collections on or in respect of Corrected Mortgage Loans), together with any
other cash recoveries on and proceeds of any Cross-Collateralized Group shall be
applied among the Pooled Mortgage Loans constituting such Cross-Collateralized
Group in accordance with the express provisions of the related Mortgage Loan
Documents and, in the absence of such express provisions, in accordance with the
Servicing Standard. All amounts Received by the Trust in respect of or allocable
to any particular Pooled Mortgage Loan (whether or not such Pooled Mortgage Loan
constitutes part of a Cross-Collateralized Group, but excluding the
Non-Trust-Serviced Pooled Mortgage Loan), including any payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds (including any
such collections on or in respect of Corrected Mortgage Loans), together with
any other cash recoveries on and proceeds of such Pooled Mortgage Loan shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Loan Documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of any
related and unreimbursed Servicing Advances (together with, without duplication,
any Unliquidated Advances in respect of prior Servicing Advances and any prior
Servicing Advances theretofore determined to constitute Nonrecoverable Servicing
Advances) and, if applicable, unpaid Liquidation Expenses; second, as a recovery
of accrued and unpaid interest (together with, without duplication, any
Unliquidated Advances in respect of prior P&I Advances of such interest and any
P&I Advances of interest theretofore determined to constitute Nonrecoverable P&I
Advances) on such Pooled Mortgage Loan to, but not including, the Due Date in
the Collection Period in which the collection occurred, exclusive, however, of
any portion of such accrued and unpaid interest that constitutes Default
Interest or, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, that constitutes Post-ARD Additional Interest; third, as a recovery of
principal (together with, without duplication, any Unliquidated Advances in
respect of prior P&I Advances of such principal and any prior P&I Advances of
such principal theretofore determined to constitute Nonrecoverable P&I Advances)
of such Pooled Mortgage Loan then due and owing, including by reason of
acceleration of such Pooled Mortgage Loan following a default thereunder (or, if
a Liquidation Event has occurred in respect of such Pooled Mortgage Loan, as a
recovery of principal to the extent of its entire remaining unpaid principal
balance); fourth, unless a Liquidation Event has occurred in respect of such
Pooled Mortgage Loan, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred in respect of such Pooled
Mortgage Loan, as a recovery of Reserve Funds to the extent then required to be
held in escrow; sixth, as a recovery of any Default Charges then due and owing
under such Pooled Mortgage Loan; seventh, as a recovery of any Prepayment
Premium or Yield Maintenance Charge then due and owing under such Pooled
Mortgage Loan; eighth, as a recovery of any assumption fees and modification
fees then due and owing under such Pooled Mortgage Loan; ninth, as a recovery of
any other amounts then due and owing under such Pooled Mortgage Loan other than
remaining unpaid principal and, in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, other than Post-ARD Additional Interest; tenth, as a
recovery of any remaining principal of such Pooled Mortgage Loan to
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the extent of its entire remaining unpaid principal balance; and, eleventh, in
the case of an ARD Mortgage Loan after its Anticipated Repayment Date, as a
recovery of accrued and unpaid Post-ARD Additional Interest on such ARD Mortgage
Loan to, but not including, the date of receipt by or on behalf of the Trust.
(b) Amounts Received by the Trust with respect to each REO Property
(other than, if applicable, any REO Property related to the Non-Trust-Serviced
Pooled Mortgage Loan) (exclusive of amounts to be applied to the payment of the
costs of operating, managing, maintaining and disposing of such REO Property)
shall be treated: first, as a recovery of any related and unreimbursed Servicing
Advances (together with any Unliquidated Advances in respect of prior Servicing
Advances and any prior Servicing Advances theretofore determined to constitute
Nonrecoverable Servicing Advances) and, if applicable, unpaid Liquidation
Expenses; second, as a recovery of accrued and unpaid interest (together with
any Unliquidated Advances in respect of prior P&I Advances of such interest and
any P&I Advances of interest theretofore determined to constitute Nonrecoverable
P&I Advances) on the related REO Pooled Mortgage Loan to, but not including, the
Due Date in the Collection Period of receipt by or on behalf of the Trust,
exclusive, however, of any portion of such accrued and unpaid interest that
constitutes Default Interest or, in the case of an REO Pooled Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, that
constitutes Post-ARD Additional Interest; third, as a recovery of principal
(together with any Unliquidated Advances in respect of prior P&I Advances of
such principal and any P&I Advances of principal theretofore determined to
constitute Nonrecoverable P&I Advances) of the related REO Pooled Mortgage Loan
to the extent of its entire unpaid principal balance; fourth, as a recovery of
any Default Charges deemed to be due and owing in respect of the related REO
Pooled Mortgage Loan; fifth, as a recovery of any Prepayment Premium or Yield
Maintenance Charge deemed to be due and owing in respect of the related REO
Pooled Mortgage Loan; sixth, as a recovery of any other amounts deemed to be due
and owing in respect of the related REO Pooled Mortgage Loan (other than, in the
case of an REO Pooled Mortgage Loan that relates to an ARD Mortgage Loan after
its Anticipated Repayment Date, accrued and unpaid Post-ARD Additional
Interest); and seventh, in the case of an REO Pooled Mortgage Loan that relates
to an ARD Mortgage Loan after its Anticipated Repayment Date, as a recovery of
any accrued and unpaid Post-ARD Additional Interest on such REO Pooled Mortgage
Loan to, but not including, the date of receipt by or on behalf of the Trust.
(c) Amounts collected on or with respect to the 11 Penn Plaza Loan
Group or any related REO Property shall be applied in the aggregate in
accordance with Section 1.03(a) or Section 1.03(b), as applicable, and, as
between the 11 Penn Plaza Pooled Mortgage Loan and the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan, on a pro rata basis according to their respective
outstanding principal balances (except if, as and to the extent otherwise
provided in the 00 Xxxx Xxxxx Intercreditor Agreement). The parties hereto
acknowledge that any payments, collections and recoveries received by the
parties to the Non-Trust Servicing Agreement related to the Non-Trust-Serviced
Pooled Mortgage Loan are required to be allocated by such parties in accordance
with the terms and conditions of the related Mortgage Loan Group Intercreditor
Agreement and the Non-Trust Servicing Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest on
an ARD Mortgage Loan or a successor REO Mortgage Loan with respect thereto 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
Mortgage Loan or successor REO Mortgage Loan, notwithstanding that the terms of
the related Mortgage Loan Documents so permit. To the extent any Post-ARD
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
(e) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Certificate Administrator Report as
provided in Section 4.02.
SECTION 1.04. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that any groups of Pooled Mortgage Loans identified on the Pooled
Mortgage Loan Schedule as being cross-collateralized with each other are, in the
case of each such particular group of Pooled Mortgage Loans, by their terms,
cross-defaulted and cross-collateralized with each other. For purposes of
reference only in this Agreement, and without in any way limiting the servicing
rights and
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powers of the applicable Master Servicer and/or the Special Servicer, with
respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage
Loan with respect thereto), the Mortgaged Property (or REO Property) that
relates or corresponds thereto shall be the property identified in the Pooled
Mortgage Loan Schedule as corresponding thereto. The provisions of this
Agreement, including each of the defined terms set forth in Section 1.01, shall
be interpreted in a manner consistent with this Section 1.04; provided that, if
there exists with respect to any Cross-Collateralized Group only one original of
any document referred to in the definition of "Mortgage File" covering all the
Pooled Mortgage Loans in such Cross-Collateralized Group, then the inclusion of
the original of such document in the Mortgage File for any of the Pooled
Mortgage Loans constituting such Cross-Collateralized Group shall be deemed an
inclusion of such original in the Mortgage File for each such Pooled Mortgage
Loan.
SECTION 1.05. Incorporation of Preliminary Statement.
The parties hereto acknowledge that the Preliminary Statement at the
beginning of this Agreement constitutes a part of this Agreement.
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ARTICLE II
CONVEYANCE OF POOLED MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF REMIC I REGULAR INTERESTS, REMIC II REGULAR INTERESTS, REMIC III
COMPONENTS, REMIC I RESIDUAL INTEREST, REMIC II RESIDUAL INTEREST, REMIC III
RESIDUAL INTEREST AND CERTIFICATES
SECTION 2.01. Conveyance of Pooled Mortgage Loans.
(a) It is the intention of the parties hereto that a common law trust
be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "Bear Xxxxxxx
Commercial Mortgage Trust 2004-PWR6". LaSalle is hereby appointed, and does
hereby agree to act, as Trustee hereunder and, in such capacity, to hold the
Trust Fund in trust for the exclusive use and benefit of all present and future
Certificateholders. It is not intended that this Agreement create a partnership
or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery hereof,
does hereby transfer, assign, 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 Original Pooled Mortgage Loans and all documents included in the related
Mortgage Files and Servicing Files, (ii) the rights of the Depositor under
Sections 2, 3, 4 (other than Section 4(c)) and 5 (and, to the extent related to
the foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each Pooled
Mortgage Loan Purchase Agreement and (iii) all other assets included or to be
included in the Trust Fund. Such assignment includes (i) all scheduled payments
of principal and interest under and proceeds of the Original Pooled Mortgage
Loans received after the Cut-off Date (other than scheduled payments of interest
and principal due on or before the respective Cut-off Date, which shall belong
and be promptly remitted to the related Pooled Mortgage Loan Seller), together
with all documents delivered or caused to be delivered hereunder with respect to
the Original Pooled Mortgage Loans by the respective Pooled Mortgage Loan
Sellers (including all documents included in the related Mortgage Files and
Servicing Files and any related Additional Collateral); (ii) any REO Property
acquired in respect of an Original Pooled Mortgage Loan (or, in the case of any
REO Property related to the Non-Trust-Serviced Pooled Mortgage Loan, the rights
of the holder of the related Original Pooled Mortgage Loan with respect
thereto); and (iii) such funds or assets as from time to time are deposited in
each Collection Account, the Distribution Account, the Interest Reserve Account,
the Excess Liquidation Proceeds Account and, if established, and subject to the
rights of any related Serviced Non-Pooled Mortgage Loan Noteholders, the related
REO Account. This conveyance is subject, however, to the right of the Designated
Sub-Servicers pursuant to the Designated Sub-Servicer Agreements and, in the
case of any particular Original Pooled Mortgage Loan, the rights of any other
creditor(s) under any related intercreditor agreement, co-lender agreement or
similar agreement.
After the Depositor's transfer of the Original Pooled Mortgage Loans to
the Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Pooled Mortgage Loans.
(c) The conveyance of the Original Pooled Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties hereto to constitute an absolute transfer of the Original Pooled
Mortgage Loans and such other related rights and property by the Depositor to
the Trustee for the benefit of the Certificateholders. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, the
Depositor and the Trustee intend that the rights and obligations of the parties
to such loan shall be established pursuant to the terms of this Agreement. The
Depositor and the Trustee also intend and agree that, in such event, (i) this
Agreement shall constitute a security agreement under applicable law, (ii) the
Depositor shall be deemed to have granted to the Trustee (in such capacity) a
first priority security interest in all of the Depositor's right, title and
interest in and to the assets constituting the Trust Fund, including the Pooled
Mortgage Loans subject hereto from time to time, all principal and interest
received on or with
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respect to such Mortgage Loans after the Closing Date (other than scheduled
payments of interest and principal due and payable on such Mortgage Loans on or
prior to the related Due Date in December 2004 or, in the case of a Replacement
Pooled Mortgage Loan, on or prior to the related date of substitution), all
amounts held from time to time in each Collection Account, the Distribution
Account, the Interest Reserve Account, the Excess Liquidation Proceeds Account
and, if established, the REO Accounts, and all investment earnings on such
amounts, and all of the Depositor's right, title and interest under the Pooled
Mortgage Loan Purchase Agreements that are described under clause (ii) of the
first sentence of Section 2.01(b), (iii) the possession by the Trustee or its
agent of the Mortgage Notes with respect to the Pooled Mortgage Loans subject
hereto from time to time and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" or possession by a purchaser or person
designated by such secured party for the purpose of perfecting such security
interest under applicable law, and (iv) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose of perfecting such security interest under applicable law. The
Depositor shall file or cause to be filed, as a precautionary filing, a Form
UCC-1 financing statement substantially in the form attached as Exhibit J hereto
in all appropriate locations in the State of Delaware promptly following the
initial issuance of the Certificates, and the Trustee shall, at the expense of
the Depositor (to the extent reasonable), prepare and file continuation
statements with respect thereto, in each case within six months prior to the
fifth anniversary of the immediately preceding filing. The Depositor shall
cooperate in a reasonable manner with the Trustee in the preparation and filing
such continuation statements. This Section 2.01(c) shall constitute notice to
the Trustee pursuant to any requirements of the UCC in effect in each applicable
jurisdiction.
(d) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is obligated, at such Pooled Mortgage Loan Seller's
expense, pursuant to the related Pooled Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage Note for each Pooled Mortgage Loan so assigned, endorsed to the Trustee
as specified in clause (i) of the definition of "Mortgage File" and, on or
before the respective delivery dates therefor set forth in the related Pooled
Mortgage Loan Purchase Agreement, the remainder of the Mortgage File and any
Additional Collateral (other than original Letters of Credit and Reserve Funds,
which are to be transferred to the applicable Master Servicer) for each Original
Pooled Mortgage Loan acquired by the Depositor from such Pooled Mortgage Loan
Seller. Notwithstanding the preceding sentence, if the applicable Pooled
Mortgage Loan Seller cannot so deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (iii), (vii) and (ix)(A) of the definition of
"Mortgage File", with evidence of recording or filing (if applicable, and as the
case may be) thereon, solely because of a delay caused by the public recording
or filing office where such document or instrument has been delivered for
recordation or filing, as the case may be, then (subject to the obligation of
such Pooled Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be made reasonably diligent efforts to obtain such document or
instrument (with such evidence) if it is not returned within a reasonable period
after the date when it was transmitted for recording and (2) deliver such
document or instrument to the Trustee or a Custodian appointed thereby (if such
document or instrument is not otherwise returned to the Trustee or such
Custodian) promptly upon such Pooled Mortgage Loan Seller's receipt thereof), so
long as a copy of such document or instrument, certified by such Pooled Mortgage
Loan Seller or title agent as being a copy of the document deposited for
recording or filing and (in the case of such clause (ii)) accompanied by an
Officer's Certificate of the applicable Pooled Mortgage Loan Seller or a
statement from the title agent to the effect that such original Mortgage has
been sent to the appropriate public recording official for recordation, has been
delivered to the Trustee on or before the respective delivery dates therefor set
forth in the related Pooled Mortgage Loan Purchase Agreement, the delivery
requirements of the related Pooled Mortgage Loan Purchase Agreement shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File; and if the
applicable Pooled Mortgage Loan Seller cannot or does not so deliver, or cause
to be delivered, as to any Pooled Mortgage Loan (exclusive of the
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, then (subject to the obligation of such
Pooled Mortgage Loan Seller to nonetheless (1) from time to time make or cause
to be made
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reasonably diligent efforts to obtain such document or instrument (with such
evidence) if it is not returned within a reasonable period after the date when
it was transmitted for recording and (2) deliver such document or instrument to
the Trustee or a Custodian appointed thereby (if such document or instrument is
not otherwise returned to the Trustee or such Custodian) promptly upon such
Pooled Mortgage Loan Seller's receipt thereof), so long as a copy of such
document or instrument, certified by such Pooled Mortgage Loan Seller, a title
agent or a recording or filing agent as being a copy of the document deposited
for recording or filing and accompanied by an Officer's Certificate of such
Pooled Mortgage Loan Seller or a statement from the title agent that such
document or instrument has been sent to the appropriate public recording
official for recordation (except that such certification shall not be required
if the Trustee is responsible for recordation of such document or instrument
under this Agreement and such Pooled Mortgage Loan Seller has delivered the
original unrecorded document or instrument to the Trustee on or before the date
that is 45 days following the Closing Date), has been delivered to the Trustee
on or before the respective delivery dates therefor set forth in the related
Pooled Mortgage Loan Purchase Agreement, the delivery requirements of the
related Pooled Mortgage Loan Purchase Agreement shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File. In addition, with respect to each
Pooled Mortgage Loan (exclusive of the Non-Trust-Serviced Pooled Mortgage Loan)
under which any Additional Collateral is in the form of a Letter of Credit as of
the Closing Date, the Depositor hereby represents and warrants that the related
Pooled Mortgage Loan Seller is contractually obligated to cause to be prepared,
executed and delivered to the issuer of each such Letter of Credit such notices,
assignments and acknowledgments as are required under such Letter of Credit to
assign, without recourse, to the Trustee the related Pooled Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder.
Furthermore, with respect to each Pooled Mortgage Loan, if any, as to which
there exists a secured creditor impaired property insurance policy or pollution
limited liability environmental impairment policy covering the related Mortgaged
Property, the related Pooled Mortgage Loan Seller is contractually obligated to
cause such policy, within a reasonable period following the Closing Date, to
inure to the benefit of the Trustee on behalf of the Certificateholders (if and
to the extent that it does not by its terms automatically run to the holder of
such Pooled Mortgage Loan). The Depositor shall deliver to the Trustee on or
before the Closing Date a fully executed counterpart of each Pooled Mortgage
Loan Purchase Agreement. With respect to the Non-Trust-Serviced Pooled Mortgage
Loan, the parties hereto acknowledge the provisions of the related Pooled
Mortgage Loan Purchase Agreement in which the related Pooled Mortgage Loan
Seller represents, warrants and covenants to the effect that the documents
described in clauses (ii) and (iii) of the definition of "Mortgage File" and
documents comparable to those described in clause (iv) of the definition of
"Mortgage File" have been delivered to the trustee or custodian under the
Non-Trust Servicing Agreement, except to the extent that the absence of such
document does not violate the terms of the Non-Trust Servicing Agreement. In
addition, with respect to the Non-Trust-Serviced Pooled Mortgage Loan, the
parties hereto acknowledge the provisions of the related Pooled Mortgage Loan
Purchase Agreement in which the related Pooled Mortgage Loan Seller represents,
warrants and covenants to the effect that any "Document Defect" as such term is
defined in the applicable Non-Trust Servicing Agreement shall constitute a
Document Defect under the related Pooled Mortgage Loan Purchase Agreement. None
of the Depositor, the Trustee, the Fiscal Agent, any Custodian, either Master
Servicer or the Special Servicer shall be liable for any failure by any Pooled
Mortgage Loan Seller to comply with the document delivery requirements of the
related Pooled Mortgage Loan Purchase Agreement.
(e) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or, in the case of a Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, including via electronic means, if appropriate,
in or with the appropriate office for real property records or UCC Financing
Statements, as applicable, each assignment of Mortgage and assignment of
Assignment of Leases (except, in each case, with respect to any Mortgage or
Assignment of Leases that has been recorded in the name of MERS or its designee)
in favor of the Trustee referred to in clause (iv) of the definition of
"Mortgage File" that has been received by the Trustee or a Custodian on its
behalf and each assignment of UCC Financing Statement (except with respect to
any UCC Financing Statement that has been recorded in the name of MERS or its
designee) in favor of the Trustee referred to in clause (ix)(B) of the
definition of "Mortgage File" that has been received by the Trustee or a
Custodian on its behalf; provided, however, that (x) the Trustee shall only
submit such items for recording or filing to
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the extent that they are related to Mortgage Loans for which PMCF is the Pooled
Mortgage Loan Seller and (y) the parties hereto acknowledge that the BSCMI
Pooled Mortgage Loan Purchase Agreement, the WFB Pooled Mortgage Loan Agreement
and the Nationwide Pooled Mortgage Loan Agreement require BSCMI, WFB or
Nationwide, as the case may be, to itself submit or cause to be submitted, such
items for recording or filing to the extent that they are related to Mortgage
Loans for which such Pooled Mortgage Loan Seller is the applicable Pooled
Mortgage Loan Seller. Each such assignment shall reflect that it should be
returned by the public recording office to the Trustee following recording, and
each such assignment of UCC Financing Statement shall reflect that the file copy
thereof or an appropriate receipt therefor, as applicable, should be returned to
the Trustee following filing; provided that in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases a copy of the recorded original shall be obtained. At such
time as such assignments or verifications of electronic filing have been
returned to the Trustee, the Trustee shall, if so requested, forward a copy
thereof to the applicable Master Servicer either, to the extent that they are
related to Mortgage Loans for which PMCF or Nationwide is the Pooled Mortgage
Loan Seller, at the expense of the related Pooled Mortgage Loan Seller to the
extent provided in the separate agreement between the Trustee and such Pooled
Mortgage Loan Seller, or, to the extent that they are related to Mortgage Loans
for which BSCMI or WFB is the Pooled Mortgage Loan Seller, at the expense of the
related Pooled Mortgage Loan Seller as provided in the related Pooled Mortgage
Loan Purchase Agreement and, in any case, not at the expense of the Trust Fund.
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 Pooled Mortgage Loan Seller to prepare or cause to be prepared promptly,
pursuant to the related Pooled Mortgage Loan Purchase Agreement, a substitute
therefor or cure such defect, as the case may be, and thereafter the Trustee (in
connection with Mortgage Loans described in clause (x) above) or the applicable
Pooled Mortgage Loan Seller (in connection with Mortgage Loans described in
clause (y)) shall, upon receipt thereof, cause the same to be duly recorded or
filed, as appropriate. If the related Pooled Mortgage Loan Seller has been so
notified and has not prepared a substitute document or cured such defect, as the
case may be, within 60 days, the Trustee shall promptly notify the Master
Servicers, the Special Servicer, the Rating Agencies and the Controlling Class
Representative. The Depositor and the Trustee hereby acknowledge and agree that
PMCF shall be responsible for paying, pursuant to a separate agreement between
such Pooled Mortgage Loan Seller and the Trustee and not pursuant to this
Agreement, an upfront fee to the Trustee in connection with the above-referenced
recording and filing of documents insofar as such recording and filing relate to
the Original Pooled Mortgage Loans sold by PMCF under the PMCF Pooled Mortgage
Loan Purchase Agreement; provided that PMCF shall not actually record or file
any such documents.
(f) In connection with the Depositor's assignment pursuant to Section
2.01(b) above, the Depositor hereby represents and warrants that each Pooled
Mortgage Loan Seller is contractually obligated, at such Pooled Mortgage Loan
Seller's expense, pursuant to the related Pooled Mortgage Loan Purchase
Agreement, to deliver to and deposit with, or cause to be delivered to and
deposited with, the applicable Master Servicer, on or before the date that is 45
days after the Closing Date, in the case of the items in clause (i) below, and
20 days after the Closing Date, in the case of the items in clause (ii) below,
the following items (except to the extent that any of the following items are to
be retained by a primary servicer that will continue to act on behalf of the
applicable Master Servicer as a Sub-Servicer and except to the extent that any
of the following items relate to the Non-Trust-Serviced Pooled Mortgage Loan):
(i) originals or copies of all financial statements, appraisals,
environmental/engineering reports, transaction screens, seismic assessment
reports, leases, rent rolls, Insurance Policies and certificates, major space
leases, legal opinions and tenant estoppels and any other relevant documents
relating to the origination and servicing of any Mortgage Loan that are
reasonably necessary for the ongoing administration and/or servicing of the
applicable Mortgage Loan in the possession or under the control of such Pooled
Mortgage Loan Seller that relate to the Original Pooled Mortgage Loans
transferred by it to the Depositor and, to the extent that any original
documents are not required to be a part of a Mortgage File for any such Original
Pooled Mortgage Loan, originals or copies of all documents, certificates and
opinions in the possession or under the control of such Pooled Mortgage Loan
Seller that were delivered by or on behalf of the related Borrowers in
connection with the origination of such Original Pooled Mortgage Loans (provided
that such Pooled Mortgage Loan Seller shall not be required to deliver any
attorney-client privileged communication, draft documents or any documents or
materials prepared by it or its Affiliates for internal uses, including without
limitation, credit committee briefs or memoranda and other internal approval
documents); and (ii) all unapplied Reserve Funds and Escrow Payments in the
possession or under the control of such Pooled Mortgage Loan Seller that relate
to the Original Pooled Mortgage Loans transferred by such
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Pooled Mortgage Loan Seller to the Depositor. Each Master Servicer shall hold
all such documents, records and funds that it so receives on behalf of the
Trustee in trust for the benefit of the Certificateholders (and, insofar as they
also relate to any Serviced Non-Pooled Mortgage Loan, on behalf of and for the
benefit of any and all related Serviced Non-Pooled Mortgage Loan Noteholders).
SECTION 2.02. Acceptance of Mortgage Assets by Trustee.
(a) Subject to the other provisions in this Section 2.02, the Trustee,
by its execution and delivery of this Agreement, hereby accepts receipt on
behalf of the Trust, directly or through a Custodian on its behalf, of (i) the
Original Pooled Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, 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 any other documents received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Original Pooled
Mortgage Loans and such other assets, together with any other Pooled Mortgage
Loans and assets subsequently delivered to it that are to be included in the
Trust Fund, in trust for the exclusive use and benefit of all present and future
Certificateholders. To the extent that the Mortgage File relates to a Pooled
Mortgage Loan that is part of the Serviced Mortgage Loan Group, the Trustee
shall also hold such Mortgage File in trust for the use and benefit of the
related Serviced Non-Pooled Mortgage Loan Noteholders. Each Master Servicer
acknowledges receipt of all of the original Letters of Credit relating to the
Serviced Pooled Mortgage Loans for which it is the applicable Master Servicer,
copies of which are part of the Mortgage File and agrees to hold such Letters of
Credit in trust for the benefit of the Trustee. In connection with the
foregoing, the Trustee hereby certifies to each of the other parties hereto,
each Pooled Mortgage Loan Seller and each Underwriter that, as to each Pooled
Mortgage Loan, except as specifically identified in the Schedule of Exceptions
to Mortgage File Delivery attached hereto as Schedule II, (i) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession or the possession of a Custodian on its behalf, and (ii) the original
Mortgage Note (or, if accompanied by a lost note affidavit, the copy of such
Mortgage Note) received by it or any Custodian with respect to such Pooled
Mortgage Loan has been reviewed by it or by such Custodian on its behalf and (A)
appears regular on its face (handwritten additions, changes or corrections shall
not constitute irregularities if initialed by the Borrower), (B) appears to have
been executed (where appropriate) and (C) purports to relate to such Pooled
Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), the Trustee or
a Custodian on its behalf shall review the documents delivered to it or such
Custodian with respect to each Original Pooled Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing to each
of the other parties hereto (substantially in the form of Exhibit N), the Pooled
Mortgage Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the
Controlling Class Representative that, as to each Original Pooled Mortgage Loan
then subject to this Agreement (except as specifically identified in any
exception report annexed to such certification): (i) the original Mortgage Note
specified in clause (i) of the definition of "Mortgage File" and all allonges
thereto, if any (or a copy of such Mortgage Note, together with a lost note
affidavit and indemnity certifying that the original of such Mortgage Note has
been lost), the original or copy of documents specified in clauses (ii), (iii),
(iv) (except with respect to the Non-Trust-Serviced Pooled Mortgage Loan),
(viii) (without regard to the verification of the effective date with respect to
a title policy or the date of funding with respect to a title commitment), (x)
(if the Pooled Mortgage Loan Schedule specifies that a material portion of the
interest of the Borrower in the related Mortgaged Property consists of a
leasehold interest) and (xx) (solely in the case of the Pooled Mortgage Loans
secured by the Mortgaged Properties identified on the Pooled Mortgage Loan
Schedule as "Hilton Sandestin Beach Golf Resort & Spa", "Tampa Hilton",
"Residence Inn by Marriott", "Courtyard by Marriott" and "SpringHill Suites by
Marriott") of the definition of "Mortgage File" have been received by it or a
Custodian on its behalf; (ii) if such report is due more than 180 days after the
Closing Date, the recordation/filing contemplated by Section 2.01(e) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (iii) all documents received by it or any Custodian with respect to
such Pooled Mortgage Loan have been reviewed by it or by such Custodian on its
behalf and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Pooled
Mortgage Loan; (iv) based on the examinations referred to in
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Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Pooled Mortgage Loan Schedule with
respect to the items specified in clause (iii)(A) and clause (vi) of the
definition of "Pooled Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File; and (v) the Trustee on
behalf of the Trust is shown as the owner of each Mortgage recorded in the name
of MERS or its designee. Every 90 days after such 45th day following the Closing
Date, until the earlier of (i) the date on which such exceptions are eliminated
and such recordation/filing has been completed, and (ii) the date on which all
the affected Pooled Mortgage Loans are removed from the Trust Fund, the Trustee
or a Custodian on its behalf shall deliver electronically to the Pooled Mortgage
Loan Sellers, the Serviced Non-Pooled Mortgage Loan Noteholders and the
Controlling Class Representative an update to the exception report annexed to
the certification described above substantially in the form of Exhibit N, which
update shall report any remaining outstanding exceptions with respect to each
Original Pooled Mortgage Loan. Such delivery shall be deemed to constitute a
certification of the substance of the matters set forth in the form of such
Exhibit N (except as set forth in such exception report). The applicable Master
Servicer shall provide the contact name, mailing address and e-mail address of
each Serviced Non-Pooled Mortgage Loan Noteholder to the Trustee to the extent
not previously provided thereto, provided that the applicable Master Servicer
has such information.
(c) If a Pooled Mortgage Loan Seller substitutes a Replacement Pooled
Mortgage Loan for any Defective Pooled Mortgage Loan as contemplated by Section
2.03, the Trustee or a Custodian on its behalf shall review the documents
delivered to it or such Custodian with respect to such Replacement Pooled
Mortgage Loan, and the Trustee shall deliver a certification comparable to that
described in the prior paragraph, in respect of such Replacement Pooled Mortgage
Loan, on or about the 30th day following the related date of substitution (and,
if any exceptions are noted, every 90 days thereafter until the earlier of (i)
the date on which such exceptions are eliminated and all related
recording/filing has been completed, and (ii) the date on which such Replacement
Pooled Mortgage Loan is removed from the Trust Fund).
With respect to the documents described in clause (iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certification(s) delivered in this
Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan includes a separate Assignment of
Leases.
With respect to the documents described in clause (ix) 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(s) to be delivered pursuant to this Section 2.02(b), that the
Mortgage File for each Pooled Mortgage Loan should include a copy of one
state-level UCC Financing Statement filed in the state of incorporation or
organization of the related Borrower for each Mortgaged Property (or with
respect to any Pooled Mortgage Loan that has two or more Borrowers, for each
related Borrower). To the extent appropriate under applicable law, the UCC
Financing Statements 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 or organization as so indicated on the documents provided.
(d) None of the Depositor, the Certificate Administrator, the Trustee,
the Master Servicers, the Special Servicer or any Custodian is under any duty or
obligation to (i) determine whether any of the documents specified in clauses
(iii), (iv)(B), (v), (vi), (vii), (ix) and (xi) through (xviii) of the
definition of "Mortgage File" exist or are required to be delivered by the
Pooled Mortgage Loan Sellers in respect of any Pooled Mortgage Loan unless such
item(s) are specified on the related Mortgage File Checklist, or (ii) inspect,
review or examine any of the documents, instruments, certificates or other
papers relating to the Pooled Mortgage Loans delivered to it to determine that
the same are valid, legal, effective, genuine, binding, enforceable, sufficient
or appropriate for the represented purpose or that they are other than what they
purport to be on their face. Furthermore, except as expressly provided in
Section 2.01(e), none of the Depositor, the Trustee, the Master Servicers, the
Special Servicer or any Custodian shall have any responsibility for determining
whether the text of any assignment or endorsement is in proper or recordable
form, whether the requisite recording of any document is in accordance with the
requirements of any applicable jurisdiction, or whether a blanket assignment is
permitted in any applicable jurisdiction.
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(e) In performing the reviews contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the related Pooled Mortgage Loan
Seller as to the purported genuineness of any such document and any signature
thereon. It is understood that the scope of the Trustee's review of the Mortgage
Files is limited solely to confirming that the documents specified in clauses
(i), (ii), (iii), (iv) (except with respect to the Non-Trust-Serviced Pooled
Mortgage Loan), (viii) (without regard to the verification of the effective date
with respect to a title policy or the date of funding with respect to a title
commitment), (x) (if the Pooled Mortgage Loan Schedule specifies that a material
portion of the interest of the Borrower in the related Mortgaged Property
consists of a leasehold interest) and (xx) (solely in the case of the Pooled
Mortgage Loans secured by the Mortgaged Properties identified on the Pooled
Mortgage Loan Schedule as "Hilton Sandestin Beach Golf Resort & Spa", "Tampa
Hilton", "Residence Inn by Marriott", "Courtyard by Marriott" and "SpringHill
Suites by Marriott") of the definition of "Mortgage File" have been received by
it or a Custodian on its behalf and such additional information as will be
necessary for delivering the certifications required by subsections (a) and (b)
above.
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage
Loans by the Pooled Mortgage Loan Sellers.
(a) If, in the process of reviewing the documents delivered or caused
to be delivered by the Pooled Mortgage Loan Sellers as contemplated by Section
2.01(d), the Trustee or any Custodian discovers that any document required to
have been delivered as contemplated by Section 2.01(d) has not been so
delivered, or discovers that any of the documents that were delivered has not
been properly executed, contains information that does not conform in any
material respect with the corresponding information set forth in the Pooled
Mortgage Loan Schedule, or is defective on its face (each, including, without
limitation, that a document is missing, a "Document Defect"), or if, at any
other time, the Trustee or any other party hereto discovers (without implying
that any such party has a duty to make or attempt to make such discovery) a
Document Defect in respect of any Pooled Mortgage Loan, the party discovering
such Document Defect shall promptly so notify each of the other parties hereto.
If any party hereto discovers (without implying that any such party has a duty
to make or attempt to make such discovery) or receives notice of a breach of any
representation or warranty relating to any Pooled Mortgage Loan set forth in or
made pursuant to Section 4(b) or 4(d) of any Pooled Mortgage Loan Purchase
Agreement (a "Breach"), such party shall promptly so notify each of the other
parties hereto. Upon the Trustee's discovery or receipt of notice that a
Document Defect or Breach exists with respect to any Pooled Mortgage Loan, the
Trustee shall notify the Controlling Class Representative, the Depositor and the
related Pooled Mortgage Loan Seller.
(b) Promptly upon its becoming aware of any Material Document Defect or
Material Breach with respect to any Pooled Mortgage Loan or its receipt of
notice from the Trustee or any other party to this Agreement of a Material
Document Defect or Material Breach with respect to any Pooled Mortgage Loan, the
applicable Master Servicer shall (and the Special Servicer may) notify the
related Pooled Mortgage Loan Seller in writing of such Material Document Defect
or Material Breach, as the case may be, and direct such Pooled Mortgage Loan
Seller that it must, not later than 90 days from the receipt by such Pooled
Mortgage Loan Seller of such notice or 90 days from the Pooled Mortgage Loan
Seller's discovery of the subject Material Document Defect or Material Breach
(or, if such Material Breach or Material Document Defect, as the case may be,
relates to whether such Pooled Mortgage Loan is or, as of the Closing Date (or,
in the case of a Replacement Pooled Mortgage Loan, as of the related date of
substitution), was a Qualified Mortgage, and provided that such Pooled Mortgage
Loan Seller discovered or received prompt written notice thereof, within 90 days
after any earlier discovery by the Pooled Mortgage Loan Seller or any party to
this Agreement of such Material Breach or Material Document Defect, as the case
may be) (such 90-day period, in any case, the "Initial Resolution Period"),
correct or cure such Material Document Defect or
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Material Breach, as the case may be, in all material respects, or repurchase the
affected Pooled Mortgage Loan (as, if and to the extent required by the related
Pooled Mortgage Loan Purchase Agreement), at the applicable Purchase Price;
provided that if such Pooled Mortgage Loan Seller certifies to the Trustee in
writing (i) that such Material Document Defect or Material Breach, as the case
may be, does not relate to whether the affected Pooled Mortgage Loan is or, as
of the Closing Date (or, in the case of a Replacement Pooled Mortgage Loan, as
of the related date of substitution), was a Qualified Mortgage, (ii) that such
Material Document Defect or Material Breach, as the case may be, is capable of
being cured but not within the applicable Initial Resolution Period, (iii) that
such Pooled Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Material Document Defect or Material Breach, as the case may
be, during the applicable Initial Resolution Period, and (iv) that such Pooled
Mortgage Loan Seller anticipates that such Material Document Defect or Material
Breach, as the case may be, will be cured within an additional 90-day period
(such additional 90-day period, the "Resolution Extension Period") (a copy of
which certification shall be delivered by the Trustee to the applicable Master
Servicer, the Special Servicer and the Controlling Class Representative), then
such Pooled Mortgage Loan Seller shall have an additional period equal to any
such applicable Resolution Extension Period to complete such correction or cure
(or, upon failure to complete such correction or cure, to repurchase the
affected Pooled Mortgage Loan); and provided, further, that, in lieu of
repurchasing the affected Pooled Mortgage Loan as contemplated above (but, in
any event, no later than such repurchase would have to have been completed),
such Pooled Mortgage Loan Seller shall be permitted, during the three-month
period following the Startup Day for the REMIC Pool that holds the affected
Pooled Mortgage Loan (or during the two-year period following such Startup Day
if the affected Pooled Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations
Section 1.860G-2(f)), to replace the affected Pooled Mortgage Loan with one or
more Qualifying Substitute Mortgage Loans and to pay a cash amount equal to the
applicable Substitution Shortfall Amount, subject to any other applicable terms
and conditions of the related Pooled Mortgage Loan Purchase Agreement and this
Agreement. The parties hereto agree that delivery by the Trustee (or a Custodian
on its behalf) of a certification or schedule of exceptions to a Pooled Mortgage
Loan Seller shall not in and of itself constitute delivery of notice of any
Material Document Defect or knowledge of such Pooled Mortgage Loan Seller of any
Material Document Defect therein. If any Pooled Mortgage Loan is to be
repurchased or replaced as contemplated by this Section 2.03, the applicable
Master Servicer shall designate its Collection Account as the account to which
funds in the amount of the applicable Purchase Price or Substitution Shortfall
Amount (as the case may be) are to be wired, and the applicable Master Servicer
shall promptly notify the Trustee and the Certificate Administrator when such
deposit is made. Any such repurchase or replacement of a Pooled Mortgage Loan
shall be on a whole loan, servicing released basis. Notwithstanding this Section
2.03(b), the absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or a lost note affidavit and indemnity with a copy of the
Mortgage Note) and (ii) by the first anniversary of the Closing Date, of
originals or copies of the following documents (without the presence of any
factor that reasonably mitigates such absence, non-conformity or irregularity)
or of any Specially Designated Mortgage Loan Document shall be conclusively
presumed to be a Material Document Defect and shall obligate the party
discovering such to give the Trustee prompt notice, whereupon the Trustee shall
notify the applicable Pooled Mortgage Loan Seller to cure such Material Document
Defect, or, failing that, repurchase the related Pooled Mortgage Loan or REO
Mortgage Loan, all in accordance with the procedures set forth herein: (A) the
Mortgage and any separate Assignment of Leases as described by clauses (ii) and
(iii) of the definition of "Mortgage File"; (B) the title insurance policy as
described in clause (viii) of the definition of "Mortgage File" (or, if the
policy has not yet been issued, an original or copy of a written commitment
"marked-up" at the closing of such Mortgage Loan, interim binder or the pro
forma title insurance policy, in each case evidencing a binding commitment to
issue such policy); or (C) except in the case of the Non-Trust-Serviced Pooled
Mortgage Loan, the assignment of Mortgage (and any separate Assignment of
Leases) as described by clause (iv) of the definition of "Mortgage File".
The remedies provided for in this Section 2.03(b) with respect to any
Material Document Defect or Material Breach with respect to any Pooled Mortgage
Loan shall apply to the related REO Property.
If (x) a Defective Pooled Mortgage Loan is to be repurchased or
replaced as described above, (y) such Defective Pooled Mortgage Loan is part of
a Cross-Collateralized Group and (z) the applicable document defect or breach
does not constitute a Material Document Defect or Material Breach, as the case
may be, as to the other Pooled Mortgage Loan(s) that are a part of such
Crossed-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the related Pooled Mortgage Loan Seller shall be obligated to
repurchase or replace each such Other Crossed Loan in accordance with the
provisions above unless, in the case of such Breach or Document Defect:
(A) the related Pooled Mortgage Loan Seller (at its expense)
delivers or causes to be delivered to the Trustee an Opinion of Counsel to
the effect that such Pooled Mortgage Loan Seller's repurchase of only those
Pooled Mortgage Loans as to which a Material Breach has actually occurred
without regard to the
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provisions of this paragraph (the "Affected Loan(s)") and the operation of
the remaining provisions of this Section 2.03(b) will not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event hereunder; and
(B) both of the following conditions would be satisfied if the
related Pooled Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for such Other Crossed
Loan (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than
the least of (A) 0.10x below the debt service coverage ratio for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement, (B) the debt service
coverage ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) for the four preceding calendar quarters preceding
the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio, expressed
as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) at the time of repurchase or replacement and (C) 75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the related Pooled Mortgage Loan Seller to
cause to be delivered, to the applicable Master Servicer an Appraisal of any or
all of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of the related Pooled Mortgage Loan Seller if the scope and cost of the
Appraisal is approved by the related Pooled Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Pooled Mortgage Loan that forms a part of
a Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the related Pooled Mortgage Loan Seller and the
Trustee, as successor to the Depositor, are bound by an agreement (set forth in
the related Pooled Mortgage Loan Purchase Agreement) to forbear from enforcing
any remedies against the other's Primary Collateral but each is permitted to
exercise remedies against the Primary Collateral securing its respective Pooled
Mortgage Loans, including with respect to the Trustee, the Primary Collateral
securing the Affected Loan(s) still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one such party
would impair the ability of the other such party to exercise its remedies with
respect to the Primary Collateral securing the Affected Loan or the Other
Crossed Loans, as the case may be, held by the other such party, then both
parties have agreed to forbear from exercising such remedies unless and until
the Mortgage Loan Documents evidencing and securing the relevant Pooled Mortgage
Loans can be modified in a manner that complies with the applicable Pooled
Mortgage Loan Purchase Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing any of the Cross-Collateralized Loans shall be allocated between
such Pooled Mortgage Loans in accordance with the Mortgage Loan Documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. All other terms of the Pooled Mortgage Loans shall remain in full
force and effect, without any modification thereof. The Borrowers set forth on
Schedule V hereto are intended third-party beneficiaries of the provisions set
forth in this paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect to any
Pooled Mortgage Loan without the related Borrower's consent.
To the extent necessary and appropriate, the Trustee shall execute (or,
subject to Section 3.01(b) and Section 3.10, provide the applicable Master
Servicer with a limited power of attorney that enables the applicable Master
Servicer to execute) the modification of the Mortgage Loan Documents that
complies with the applicable Pooled Mortgage Loan Purchase Agreement to remove
the threat of impairment of the ability of the Pooled Mortgage Loan Seller or
the Trust Fund to exercise its remedies with respect to the Primary Collateral
securing the Pooled Mortgage Loan(s)
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held by such party resulting from the exercise of remedies by the other such
party; provided that the Trustee shall not be liable for any misuse of any such
power of attorney by a Master Servicer. The applicable Master Servicer shall
advance all costs and expenses incurred by the Trustee and such Master Servicer
with respect to any Cross-Collateralized Group pursuant to this paragraph, and
such advances and interest thereon shall (i) constitute and be reimbursable as
Servicing Advances and (ii) be included in the calculation of Purchase Price for
the Pooled Mortgage Loan(s) to be repurchased or replaced. The applicable Master
Servicer shall not be liable to any Certificateholder or any other party hereto
if a modification of the Mortgage Loan Documents described above cannot be
effected for any reason beyond the control of such Master Servicer.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(b), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(c) Whenever one or more Replacement Pooled Mortgage Loans are
substituted for a Defective Pooled Mortgage Loan by a Pooled Mortgage Loan
Seller as contemplated by this Section 2.03, the applicable Master Servicer
shall direct the party effecting the substitution to deliver to the Trustee the
related Mortgage File and a certification to the effect that such Replacement
Pooled Mortgage Loan satisfies or such Replacement Pooled Mortgage Loans
satisfy, as the case may be, all of the requirements of the definition of
"Qualifying Substitute Mortgage Loan". No mortgage loan may be substituted for a
Defective Pooled Mortgage Loan as contemplated by this Section 2.03 if the
Pooled Mortgage Loan to be replaced was itself a Replacement Pooled Mortgage
Loan, in which case, absent a cure of the relevant Material Breach or Material
Document Defect, the affected Pooled Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Pooled Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Pooled Mortgage Loan (if any) after its respective Cut-off Date and on
or prior to the related date of substitution, shall be part of the Trust Fund.
Monthly Payments due with respect to each Replacement Pooled Mortgage Loan (if
any) on or prior to the related date of substitution, and Monthly Payments due
with respect to each corresponding Deleted Pooled Mortgage Loan (if any) after
the related date of substitution, shall not be part of the Trust Fund and are to
be remitted by the applicable Master Servicer to the party effecting the related
substitution promptly following receipt.
If any Pooled Mortgage Loan is to be repurchased or replaced by a
Pooled Mortgage Loan Seller as contemplated by this Section 2.03, the applicable
Master Servicer shall direct such party to amend the Pooled Mortgage Loan
Schedule to reflect the removal of any Deleted Pooled Mortgage Loan and, if
applicable, the substitution of the related Replacement Pooled Mortgage Loan(s);
and, upon its receipt of such amended Pooled Mortgage Loan Schedule, the
applicable Master Servicer shall deliver or cause the delivery of such amended
Pooled Mortgage Loan Schedule to the other parties hereto. Upon any substitution
of one or more Replacement Pooled Mortgage Loans for a Deleted Pooled Mortgage
Loan, such Replacement Pooled Mortgage Loan(s) shall become part of the Trust
Fund and be subject to the terms of this Agreement in all respects.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the Special Servicer and/or the Trustee pursuant to
this Section 2.03(c), including reasonable attorney fees and expenses, shall
constitute Servicing Advances to the extent not collected from the related
Pooled Mortgage Loan Seller.
(d) Upon receipt of an Officer's Certificate from the applicable Master
Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Pooled Mortgage Loan
repurchased or replaced by the related Pooled Mortgage Loan Seller as
contemplated by this Section 2.03 has been deposited in such Master Servicer's
Collection Account, and further, if applicable, upon receipt of the Mortgage
File for each Replacement Pooled Mortgage Loan (if any) to be substituted for a
Deleted Pooled Mortgage Loan, together with any certifications and/or opinions
required pursuant to Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Pooled Mortgage Loan to the related Pooled Mortgage Loan
Seller or its designee and (ii) execute and deliver such instruments of release,
transfer and/or assignment, in each case without recourse, as shall be provided
to it and are reasonably necessary to vest in the party effecting the
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repurchase/substitution or its designee the ownership of the Deleted Pooled
Mortgage Loan, and the applicable Master Servicer shall notify the affected
Borrowers of the transfers of the Deleted Pooled Mortgage Loan(s) and any
Replacement Pooled Mortgage Loan(s). If the Mortgage related to the Deleted
Pooled Mortgage Loan has been recorded in the name of MERS or its designee, the
related Master Servicer shall take all necessary action to reflect the release
of such Mortgage on the records of MERS. In connection with any such repurchase
or substitution by the related Pooled Mortgage Loan Seller, each of the Master
Servicers and the Special Servicer shall deliver to the party effecting the
repurchase/substitution or its designee any portion of the related Servicing
File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or the Special
Servicer, as the case may be, with respect to the Deleted Pooled Mortgage Loan,
in each case at the expense of the party effecting the repurchase/substitution.
The reasonable "out-of-pocket" costs and expenses, including reasonable
attorneys' fees and expenses, incurred by a Master Servicer, the Special
Servicer and/or the Trustee pursuant to this Section 2.03(d), to the extent not
collected from the related Pooled Mortgage Loan Seller, shall be reimbursable to
each of them as Servicing Advances in respect of the affected Pooled Mortgage
Loan.
(e) The related Pooled Mortgage Loan Purchase Agreement provides the
sole remedies available to the Certificateholders, or the Trustee on their
behalf, respecting any Document Defect or Breach with respect to any Pooled
Mortgage Loan. If, in connection with any Material Document Defect or Material
Breach, the related Pooled Mortgage Loan Seller defaults on its obligations to
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects or to repurchase or replace the affected Pooled Mortgage
Loan as contemplated by this Section 2.03, then the applicable Master Servicer
shall (and the Special Servicer may) promptly notify the Trustee and the
Controlling Class Representative, and the Trustee shall notify the
Certificateholders. Thereafter, the Trustee shall (and the Special Servicer may
in its own name, or as provided below, in the name of the Trustee) take such
actions on behalf of the Trust with respect to the enforcement of such
repurchase/substitution obligations, including the institution and prosecution
of appropriate legal proceedings, as the Trustee (or, if applicable, the Special
Servicer) shall determine are in the best interests of the Certificateholders
(taken as a collective whole). Any and all reasonable "out-of-pocket" costs and
expenses incurred by the applicable Master Servicer, the Trustee and/or the
Special Servicer pursuant to this Section 2.03(e), including, reasonable
attorney's fees and expenses, to the extent not collected from the related
Pooled Mortgage Loan Seller, shall constitute Servicing Advances in respect of
the affected Pooled Mortgage Loan.
(f) The Trustee shall not consent to the assignment of the related
Pooled Mortgage Loan Seller's obligations under any Pooled Mortgage Loan
Purchase Agreement without written confirmation to the Trustee from each Rating
Agency to the effect that such assignment would not, in and of itself, result in
an Adverse Rating Event with respect to any Class of Rated Certificates.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under,
and compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material instrument
to which it is a party or by which it is bound, which default or breach, in
the good faith and reasonable judgment of the Depositor, is likely to affect
materially and adversely the ability of the Depositor to perform its
obligations under this Agreement.
(iii) The Depositor has the full corporate power and authority to
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. This Agreement, assuming due
authorization, execution and
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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, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(iv) 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 the ability of the Depositor to
perform its obligations under this Agreement.
(v) Immediately prior to the transfer of the Original Pooled
Mortgage Loans to the Trustee for the benefit of the Certificateholders
pursuant to this Agreement, the Depositor had such right, title and interest
in and to each Original Pooled Mortgage Loan as was transferred to it by the
related Pooled Mortgage Loan Seller pursuant to the related Pooled Mortgage
Loan Purchase Agreement. The Depositor has not transferred any of its right,
title and interest in and to the Original Pooled Mortgage Loans to any
Person other than the Trustee.
(vi) The Depositor is transferring all of its right, title and
interest in and to the Original Pooled Mortgage Loans to the Trustee for the
benefit of the Certificateholders free and clear of any and all liens,
pledges, charges, security interests and other encumbrances created by or
through the Depositor.
(vii) Except for any actions that are the express responsibility
of another party hereunder or under any Pooled Mortgage Loan Purchase
Agreement, and further except for actions that the Depositor is expressly
permitted to complete subsequent to the Closing Date, the Depositor has
taken all actions required under applicable law to effectuate the transfer
of all of its right, title and interest in and to the Original Pooled
Mortgage Loans by the Depositor to the Trustee.
(viii) No consent, approval, license, authorization or order of
any state or federal court or governmental agency or body is required for
the consummation by the Depositor of the transactions contemplated herein,
except for (A) those consents, approvals, licenses, authorizations or orders
that previously have been obtained or where the lack of such consent,
approval, license, authorization or order would not have a material adverse
effect on the ability of the Depositor to perform its obligations under this
Agreement and (B) those filings and recordings of the Depositor and
assignments thereof that are contemplated by this Agreement to be completed
after the Closing Date.
(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 remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto.
SECTION 2.05. Representations and Warranties of PAR as a Master
Servicer.
(a) PAR as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
such Master Servicer is in compliance with the laws of each State in which
any related Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan for which it is the Master Servicer
hereunder and to perform its obligations under this Agreement.
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(ii) Such Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate such Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of such Master Servicer,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to
enter into and consummate all transactions involving such Master Servicer
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 such Master Servicer, enforceable against such Master
Servicer in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with 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 such Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of such Master Servicer to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, and such Master Servicer possesses all licenses and authorizations
necessary to perform its obligations under this Agreement, except for those
consents, approvals, licenses, authorizations or orders that previously have
been obtained or where the lack of such consent, approval, license,
authorization or order would not have a material adverse effect on the
ability of such Master Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
(viii) Such Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of PAR as a Master Servicer set
forth in Section 2.05(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to PAR as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
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SECTION 2.06. Representations and Warranties of WFB as a Master
Servicer.
(a) WFB as a Master Servicer hereby represents and warrants to each of
the other parties hereto and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) Such Master Servicer is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States, and such Master Servicer is in compliance with the laws of
each State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Mortgage Loan for which it is
the Master Servicer hereunder and to perform its obligations under this
Agreement, except where the failure to so qualify or comply would not
adversely affect such Master Servicer's ability to perform its obligations
hereunder in accordance with the terms of this Agreement.
(ii) Such Master Servicer's execution and delivery of, performance
under and compliance with this Agreement, will not violate such Master
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of such Master Servicer,
is likely to affect materially and adversely the ability of such Master
Servicer to perform its obligations under this Agreement.
(iii) Such Master Servicer has the full power and authority to
enter into and consummate all transactions involving such Master Servicer
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 such Master Servicer, enforceable against such Master
Servicer in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) Such Master Servicer is not in violation of, and its execution
and delivery of, performance under and compliance with 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 such Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of such Master Servicer to perform its
obligations under this Agreement.
(vi) No consent, approval, license, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by such Master Servicer of the transactions contemplated
herein, except for those consents, approvals, licenses, authorizations or
orders that previously have been obtained or where the lack of such consent,
approval, license, authorization or order would not have a material adverse
effect on the ability of such Master Servicer to perform its obligations
under this Agreement, and, except to the extent in the case of performance,
that its failure to be qualified as a foreign corporation or licensed in one
or more states is not necessary for the performance by it of its obligations
hereunder.
(vii) No litigation is pending or, to the best of such Master
Servicer's knowledge, threatened against such Master Servicer that, if
determined adversely to such Master Servicer, would prohibit such Master
Servicer from entering into this Agreement or that, in such Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of such Master Servicer to perform its
obligations under this Agreement.
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(viii) Such Master Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of WFB as a Master Servicer set
forth in Section 2.06(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor to WFB as a Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.07. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, the
Special Servicer is in compliance with the laws of each State in which any
related Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations under
this Agreement, except where the failure to so qualify or comply would not
adversely affect the Special Servicer's ability to perform its obligations
under this Agreement.
(ii) The Special Servicer's execution and delivery of, performance
under and compliance with this Agreement will not violate the Special
Servicer's organizational documents or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Special Servicer,
is likely to affect materially and adversely the ability of the Special
Servicer to perform its obligations under this Agreement.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions involving the Special Servicer
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, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of, performance under 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 the ability of the Special Servicer to perform its
obligations under this Agreement.
(vi) No consent, approval, license, authorization or order of any
state or federal court or governmental agency or body is required for the
consummation by the Special Servicer of the transactions contemplated
herein, except for those consents, approvals, licenses, authorizations or
orders that previously have
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been obtained or where the lack of such consent, approval, license,
authorization or order would not have a material adverse effect on the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer that, if
determined adversely to the Special Servicer, would prohibit the Special
Servicer from entering into this Agreement or that, in the Special
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Special Servicer to perform its
obligations under this Agreement.
(viii) The Special Servicer has errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(d).
(b) The representations and warranties of the Special Servicer set
forth in Section 2.07(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 2.07(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 2.07(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.08. [Reserved].
SECTION 2.09. Representations and Warranties of the Certificate
Administrator.
(a) The Certificate Administrator hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Certificate Administrator is duly organized, validly
existing and in good standing as a national banking association under the
laws of the United States and possesses all licenses and authorizations
necessary to the performance of its obligations under this Agreement.
(ii) The Certificate Administrator's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Certificate Administrator's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material agreement or
other material instrument to which it is a party or by which it is bound,
which default or breach, in the good faith and reasonable judgment of the
Certificate Administrator, is likely to affect materially and adversely the
ability of the Certificate Administrator to perform its obligations under
this Agreement.
(iii) The Certificate Administrator has the requisite power and
authority to enter into and consummate all transactions involving the
Certificate Administrator 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 Certificate Administrator, enforceable against the
Certificate Administrator in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
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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.
(v) The Certificate Administrator is not in violation of, and its
execution and delivery of, performance under 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 Certificate Administrator's reasonable judgment, is likely
to affect materially and adversely the ability of the Certificate
Administrator to perform its obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Certificate Administrator of the transactions
contemplated herein, except for those consents, approvals, authorizations or
orders that previously have been obtained.
(vii) No litigation is pending or, to the best of the Certificate
Administrator's knowledge, threatened against the Certificate Administrator
that, if determined adversely to the Certificate Administrator, would
prohibit the Certificate Administrator from entering into this Agreement or
that, in the Certificate Administrator's reasonable judgment, is likely to
materially and adversely affect the ability of the Certificate Administrator
to perform its obligations under this Agreement.
(viii) The Certificate Administrator is eligible to act in such
capacity hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Certificate Administrator
set forth in Section 2.09(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Certificate Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.09(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.09(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.10. Representations and Warranties of the Tax Administrator.
(a) The Tax Administrator hereby represents and warrants to, and
covenants with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Tax Administrator is duly organized, validly existing and
in good standing as a national banking association under the laws of the
United States and possesses all licenses and authorizations necessary to the
performance of its obligations under this Agreement.
(ii) The Tax Administrator's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Tax Administrator'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,
which default or breach, in the reasonable judgment of the Tax
Administrator, is likely to affect materially and adversely the ability of
the Tax Administrator to perform its obligations under this Agreement.
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(iii) The Tax Administrator has the requisite 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 the valid, legal
and binding obligation of the Tax Administrator, enforceable against the Tax
Administrator in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally and 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 Tax Administrator is not in violation of, and its
execution and delivery of, performance under and compliance with 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
Tax Administrator's reasonable judgment, is likely to affect materially and
adversely the ability of the Tax Administrator to perform its obligations
under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Tax Administrator of the transactions contemplated
herein, except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) No litigation is pending or, to the best of the Tax
Administrator's knowledge, threatened against the Tax Administrator that, if
determined adversely to the Tax Administrator, would prohibit the Tax
Administrator from entering into this Agreement or that, in the Tax
Administrator's reasonable judgment, is likely to materially and adversely
affect the ability of the Tax Administrator to perform its obligations under
this Agreement.
(viii) The Tax Administrator is eligible to act in such capacity
hereunder in accordance with Section 8.06.
(b) The representations and warranties of the Tax Administrator set
forth in Section 2.10(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto and the Controlling Class Representative.
(c) Any successor to the Tax Administrator shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.10(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.10(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
SECTION 2.11. Representations, Warranties and Covenants of the Trustee.
(a) The Trustee hereby represents and warrants to, and covenants with,
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is duly organized, validly existing and in good
standing as a national banking association under the laws of the United
States and is, shall be or, if necessary, shall appoint a co-trustee that
is, in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan (insofar as such enforceability is dependent upon
compliance by
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the Trustee with such laws) and to perform its obligations under this
Agreement and possesses all licenses and authorizations necessary to the
performance of its obligations under this Agreement.
(ii) The Trustee's execution and delivery of, performance under
and compliance with this Agreement, 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, which breach or
default, in the good faith and reasonable judgment of the Trustee is likely
to affect materially and adversely the ability of the Trustee to perform its
obligations under this Agreement.
(iii) The Trustee has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and, in particular,
the rights of creditors of national banking associations, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of, performance under and compliance with 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.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein, except
for those consents, approvals, authorizations or orders that previously have
been obtained.
(vii) 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
that, 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.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.11(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the date
of its succession, each of the representations and warranties set forth in
Section 2.11(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.11(a)(i) to
accurately reflect such successor's jurisdiction of organization and whether it
is a corporation, partnership, bank, association or other type of organization.
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SECTION 2.12. Representations and Warranties of the Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Fiscal Agent is a foreign banking corporation duly
organized, validly existing and in good standing under the laws governing its
creation and possesses all licenses and authorizations necessary to the
performance of its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement by
the Fiscal Agent, will not violate the Fiscal Agent'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, which default, in the Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect the ability of
the Fiscal Agent to perform its obligations under this Agreement.
(iii) The Fiscal Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal and
binding obligation of the Fiscal Agent, enforceable against the Fiscal Agent in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at law.
(v) The Fiscal Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Fiscal Agent's good faith and reasonable judgment, is likely to affect
materially and adversely the ability of the Fiscal Agent to perform its
obligations under this Agreement.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation by
the Fiscal Agent of the transactions contemplated herein, except for those
consents, approvals, authorizations or orders that previously have been
obtained.
(vii) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from entering
into this Agreement or that, in the Fiscal Agent's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the Fiscal
Agent to perform its obligations under this Agreement.
(b) The representations and warranties of the Fiscal Agent set forth in
Section 2.12(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 remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties, which materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall given prompt written notice to the other
parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.12(a), subject to such appropriate modifications to the
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representation and warranty set forth in Section 2.12(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
SECTION 2.13. Creation of REMIC I; Issuance of the REMIC I Regular
Interests and the REMIC I Residual Interest; Certain
Matters Involving REMIC I.
(a) It is the intention of the parties hereto that the following
segregated pool of assets constitute a REMIC for federal income tax purposes
and, further, that such segregated pool of assets be designated as "REMIC I":
(i) the Pooled Mortgage Loans that are from time to time subject to this
Agreement, together with (A) all payments under and proceeds of such Pooled
Mortgage Loans received after the Closing Date or, in the case of any such
Pooled Mortgage Loan that is a Replacement Pooled Mortgage Loan, after the
related date of substitution (other than scheduled payments of interest and
principal due on or before the respective Cut-off Dates for such Pooled Mortgage
Loans or, in the case of any such Pooled Mortgage Loan that is a Replacement
Pooled Mortgage Loan, on or before the related date of substitution, and
exclusive of any such amounts that constitute Excess Servicing Fees and/or
Post-ARD Additional Interest), and (B) all rights of the holder of such Pooled
Mortgage Loans under the related Mortgage Loan Documents and in and to any
related Additional Collateral; (ii) any REO Property acquired in respect of any
Pooled Mortgage Loan (or, in the case of any REO Property related to the
Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the holder
of the related Pooled Mortgage Loan in such REO Property); (iii) such funds and
assets as from time to time are deposited in the Collection Accounts (but not in
any Companion Note Custodial Account), the Distribution Account, the Interest
Reserve Account, the Excess Liquidation Proceeds Account and, if established
(but, in the case of any such account established with respect to the Serviced
Mortgage Loan Group, subject to the rights of the Serviced Non-Pooled Mortgage
Loan Noteholders), the REO Accounts (exclusive of any such amounts that
constitute Excess Servicing Fees and/or Post-ARD Additional Interest); and (iv)
the rights of the Depositor under Sections 2, 3, 4 (other than Section 4(c)) and
5 (and, to the extent related to the foregoing, Sections 9, 10, 11, 12, 13, 14,
15, 17 and 18) of each Pooled Mortgage Loan Purchase Agreement. The Closing Date
is hereby designated as the "Startup Day" of REMIC I within the meaning of
Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment to the Trustee of the Original
Pooled Mortgage Loans and certain related assets, pursuant to Section 2.01(b),
and in exchange therefor, the REMIC I Regular Interests and the REMIC I Residual
Interest shall be issued. A single separate REMIC I Regular Interest shall be
issued with respect to each Original Pooled Mortgage Loan. For purposes of this
Agreement each REMIC I Regular Interest shall relate to the Original Pooled
Mortgage Loan in respect of which it was issued, to each Replacement Pooled
Mortgage Loan (if any) substituted for such Original Pooled Mortgage Loan and to
each REO Pooled Mortgage Loan deemed outstanding with respect to any REO
Property acquired in respect of such Original Pooled Mortgage Loan or any such
Replacement Pooled Mortgage Loan (or, in the case of any REO Property related to
the Non-Trust-Serviced Pooled Mortgage Loan, the beneficial interest of the
holder of the related Pooled Mortgage Loan in any related REO Property). Neither
the REMIC I Residual Interest nor any of the REMIC I Regular Interests shall be
certificated. The REMIC I Regular Interests and the REMIC I Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC I.
(c) The REMIC I Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
I Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC I. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC I (within the meaning of Treasury
Regulations Section 1.860D-1(b)(1)).
(d) The designation for each REMIC I Regular Interest shall be the
identification number for the related Original Pooled Mortgage Loan set forth in
the Pooled Mortgage Loan Schedule.
(e) Each REMIC I Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Principal Balance
of the related Original Pooled Mortgage Loan (as specified in the Pooled
Mortgage Loan Schedule). On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be permanently reduced by
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any distributions of principal deemed made with respect to such REMIC I Regular
Interest on such Distribution Date pursuant to Section 4.01(j) and shall be
further adjusted in the manner and to the extent provided in Section 4.04(c).
Except as provided in the preceding sentence and except to the extent of the
recovery of amounts previously allocated as a Realized Loss as a result of the
reimbursement from principal collections of Nonrecoverable Advances, the
Uncertificated Principal Balance of each REMIC I Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC II in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC I Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC I Regular Interest.
(f) The per annum rate at which each REMIC I Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC I Remittance Rate". The REMIC I Remittance Rate in respect of any
particular REMIC I Regular Interest, for any Interest Accrual Period, shall
equal: (A) if the related Original Pooled Mortgage Loan is or was, as the case
may be, a 30/360 Mortgage Loan, the related Net Mortgage Rate in effect for the
related Original Pooled Mortgage Loan as of the Closing Date (without regard to
any modifications, extensions, waivers or amendments of such Pooled Mortgage
Loan subsequent to the Closing Date, whether entered into by the applicable
Master Servicer or the Special Servicer or in connection with any bankruptcy,
insolvency or other similar proceeding involving the related Borrower) and (B)
if the related Original Pooled Mortgage Loan is or was, as the case may be, an
Actual/360 Mortgage Loan, a fraction (expressed as a percentage), the numerator
of which is the product of 12 times the Adjusted Actual/360 Accrued Interest
Amount with respect to such REMIC I Regular Interest for such Interest Accrual
Period, and the denominator of which is the Uncertificated Principal Balance of
such REMIC I Regular Interest immediately prior to the Distribution Date that
corresponds to such Interest Accrual Period.
The "Adjusted Actual/360 Accrued Interest Amount" with respect to any
REMIC I Regular Interest referred to in clause (B) of the second sentence of the
prior paragraph, for any Interest Accrual Period, is an amount of interest equal
to the product of (a) the Net Mortgage Rate in effect for the related Pooled
Mortgage Loan as of the Closing Date (without regard to any modifications,
extensions, waivers or amendments of such Pooled Mortgage Loan subsequent to the
Closing Date, whether entered into by the applicable Master Servicer or the
Special Servicer or in connection with any bankruptcy, insolvency or other
similar proceeding involving the related Borrower), multiplied by (b) a
fraction, the numerator of which is the number of days in such Interest Accrual
Period, and the denominator of which is 360, multiplied by (c) the
Uncertificated Principal Balance of such REMIC I Regular Interest immediately
prior to the Distribution Date that corresponds to such Interest Accrual Period;
provided that, if the subject Interest Accrual Period occurs during (x) December
of 2004 or December of any year thereafter that does not immediately precede a
leap year or (y) January of 2005 or January of any year thereafter, then the
amount of interest calculated with respect to the subject REMIC I Regular
Interest pursuant to this definition for such Interest Accrual Period without
regard to this proviso shall be decreased by the Interest Reserve Amount, if any
(and the fraction described in clause (B) of the second sentence of the
preceding paragraph shall be adjusted accordingly), with respect to the related
Pooled Mortgage Loan (or any successor REO Pooled Mortgage Loan with respect
thereto) transferred, in accordance with Section 3.04(c), from the Distribution
Account to the Interest Reserve Account on the Master Servicer Remittance Date
that occurs immediately following the end of such Interest Accrual Period; and
provided, further, that, if the subject Interest Accrual Period occurs during
February of 2005 or February of any year thereafter, then the amount of interest
calculated with respect to the subject REMIC I Regular Interest pursuant to this
definition for such Interest Accrual Period without regard to this proviso shall
be increased by the Interest Reserve Amount(s), if any (and the fraction
described in clause (B) of the second sentence of the preceding paragraph shall
be adjusted accordingly), with respect to the related Pooled Mortgage Loan (or
any successor REO Pooled Mortgage Loan with respect thereto) transferred, in
accordance with Section 3.05(c), from the Interest Reserve Account to the
Distribution Account on the Master Servicer Remittance Date that occurs
immediately following the end of such Interest Accrual Period.
(g) Each REMIC I Regular Interest shall bear interest. Such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
such interest shall accrue at the REMIC I Remittance Rate with respect to such
REMIC I Regular Interest for such Interest Accrual Period on the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to the related Distribution Date. The total amount of interest accrued with
respect to each REMIC I Regular Interest during each Interest Accrual Period is
referred to herein as its "Uncertificated
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Accrued Interest" for such Interest Accrual Period. The portion of the
Uncertificated Accrued Interest with respect to any REMIC I Regular Interest for
any Interest Accrual Period that shall be distributable to REMIC II, as the
holder of such REMIC I Regular Interest, on the related Distribution Date
pursuant to Section 4.01(j), shall be an amount (herein referred to as the
"Uncertificated Distributable Interest" with respect to such REMIC I Regular
Interest for the related Distribution Date) equal to (i) the Uncertificated
Accrued Interest with respect to such REMIC I Regular Interest for the related
Interest Accrual Period, reduced (to not less than zero) by (ii) the portion of
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date that
is allocable to such REMIC I Regular Interest. For purposes of the foregoing,
the Net Aggregate Prepayment Interest Shortfall, if any, for each Distribution
Date shall be allocated among all the REMIC I Regular Interests on a pro rata
basis in accordance with their respective amounts of Uncertificated Accrued
Interest for the related Interest Accrual Period. If the entire Uncertificated
Distributable Interest with respect to any REMIC I Regular Interest for any
Distribution Date is not deemed distributed to REMIC II, as the holder of such
REMIC I Regular Interest, on such Distribution Date pursuant to Section 4.01(j),
then the unpaid portion of such Uncertificated Distributable Interest shall be
distributable with respect to such REMIC I Regular Interest for future
Distribution Dates as provided in such Section 4.01(j).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC I Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC I Residual Interest will not have a principal balance and
will not bear interest.
SECTION 2.14. Conveyance of the REMIC I Regular Interests; Acceptance
of the REMIC I Regular Interests 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 of its right, title and interest in and to the REMIC I Regular Interests to
the Trustee for the benefit of the Holders of the Regular Interest Certificates
and the Class R 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 Regular Interest Certificates and the Class R Certificates.
SECTION 2.15. Creation of REMIC II; Issuance of the REMIC II Regular
Interests and the REMIC II Residual Interest; Certain
Matters Involving REMIC II.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC I Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC II". The Closing Date is hereby designated as the "Startup
Day" of REMIC II within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC I Regular Interests
to the Trustee pursuant to Section 2.14 and in exchange therefor, the REMIC II
Regular Interests and the REMIC II Residual Interest shall be issued. There
shall be thirty-five (35) separate REMIC II Regular Interests. Neither the REMIC
II Residual Interest nor any of the REMIC II Regular Interests shall be
certificated. The REMIC II Regular Interests and the REMIC II Residual Interest
shall collectively constitute the entire beneficial ownership of REMIC II.
(c) The REMIC II Regular Interests shall constitute the "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the REMIC
II Residual Interest shall constitute the sole "residual interest" (within the
meaning of Section 860G(a)(2) of the Code), in REMIC II. None of the parties
hereto, to the extent it is within the control thereof, shall create or permit
the creation of any other "interests" in REMIC II (within the meaning of
Treasury Regulations Section 1.860D-1(b)(1)).
(d) The REMIC II Regular Interests will have the alphabetic or
alphanumeric designations indicated in the table set forth in the Preliminary
Statement under the caption "REMIC II".
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(e) Each REMIC II Regular Interest shall have an Uncertificated
Principal Balance. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC II Regular Interest shall equal the amount set forth opposite such
REMIC II Regular Interest in the table set forth in the Preliminary Statement
under the caption "REMIC II". On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be permanently reduced
by any distributions of principal deemed made with respect to such REMIC II
Regular Interest on such Distribution Date pursuant to Section 4.01(i) and shall
be further adjusted in the manner and to the extent provided in Section 4.04(b).
Except as provided in the preceding sentence and except to the extent of the
recovery of amounts previously allocated as a Realized Loss as a result of the
reimbursement from principal collections of Nonrecoverable Advances, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall not
otherwise be increased or reduced. Deemed distributions to REMIC III in
reimbursement of any Realized Losses and Additional Trust Fund Expenses
previously deemed allocated to a REMIC II Regular Interest, shall not constitute
deemed distributions of principal and shall not result in any reduction of the
Uncertificated Principal Balance of such REMIC II Regular Interest.
(f) The per annum rate at which each REMIC II Regular Interest shall
accrue interest during each Interest Accrual Period is herein referred to as its
"REMIC II Remittance Rate". The REMIC II Remittance Rate with respect to each
REMIC II Regular Interest, for any Interest Accrual Period, is the Weighted
Average REMIC I Remittance Rate for such Interest Accrual Period. The "Weighted
Average REMIC I Remittance Rate" with respect to any Interest Accrual Period is
the rate per annum equal to the weighted average, expressed as a percentage and
rounded to six decimal places, of the REMIC I Remittance Rates applicable to the
respective REMIC I Regular Interests for such Interest Accrual Period, weighted
on the basis of the respective Uncertificated Principal Balances of such REMIC I
Regular Interests outstanding immediately prior to the related Distribution
Date.
(g) Each REMIC II Regular Interest shall bear interest. Such interest
shall be calculated on a 30/360 Basis and, during each Interest Accrual Period,
such interest shall accrue at the REMIC II Remittance Rate with respect to such
REMIC II Regular Interest for such Interest Accrual Period on the Uncertificated
Principal Balance of such REMIC II Regular Interest outstanding immediately
prior to the related Distribution Date. The total amount of interest accrued
with respect to each REMIC II Regular Interest during each Interest Accrual
Period is referred to herein as its "Uncertificated Accrued Interest" for such
Interest Accrual Period. The portion of the Uncertificated Accrued Interest with
respect to any REMIC II Regular Interest for any Interest Accrual Period that
shall be distributable to REMIC III, as the holder of such REMIC II Regular
Interest, on the related Distribution Date pursuant to Section 4.01(i), shall be
an amount (herein referred to as the "Uncertificated Distributable Interest"
with respect to such REMIC II Regular Interest for the related Distribution
Date) equal to (i) the Uncertificated Accrued Interest with respect to such
REMIC II Regular Interest for the related Interest Accrual Period, reduced (to
not less than zero) by (ii) the portion of any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date that is allocable to such REMIC II Regular
Interest. For purposes of the foregoing, the Net Aggregate Prepayment Interest
Shortfall, if any, for each Distribution Date shall be allocated among all the
REMIC II Regular Interests on a pro rata basis in accordance with their
respective amounts of Uncertificated Accrued Interest for the related Interest
Accrual Period. If the entire Uncertificated Distributable Interest with respect
to any REMIC II Regular Interest for any Distribution Date is not deemed
distributed to REMIC III, as the holder of such REMIC II Regular Interest, on
such Distribution Date pursuant to Section 4.01(i), then the unpaid portion of
such Uncertificated Distributable Interest shall be distributable with respect
to such REMIC II Regular Interest for future Distribution Dates as provided in
such Section 4.01(i).
(h) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each REMIC II Regular
Interest shall be the Rated Final Distribution Date.
(i) The REMIC II Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.16. Conveyance of the REMIC II Regular Interests; Acceptance
of the REMIC II Regular Interests 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 of its right, title and interest in and to the REMIC II Regular Interests
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to the Trustee for the benefit of the Holders of the Regular Interest
Certificates and the Class R Certificates. The Trustee acknowledges the
assignment to it of the REMIC II 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 Regular Interest Certificates and the Class R
Certificates.
SECTION 2.17. Creation of REMIC III; Issuance of the Regular
Interest Certificates, the REMIC III Components and the
REMIC III Residual Interest; Certain Matters Involving
REMIC III.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of the REMIC II Regular Interests constitute a REMIC for
federal income tax purposes and, further, that such segregated pool of assets be
designated as "REMIC III". The Closing Date is hereby designated as the "Startup
Day" of REMIC III within the meaning of Section 860G(a)(9) of the Code.
(b) Concurrently with the assignment of the REMIC II Regular Interests
to the Trustee pursuant to Section 2.16 and in exchange therefor, the REMIC III
Residual Interest shall be issued and the Certificate Administrator shall
execute, and the Authenticating Agent shall authenticate and deliver, to or upon
the order of the Depositor, the Regular Interest Certificates in authorized
denominations. There shall be twenty-three (23) Classes of Regular Interest
Certificates. The Class X-1 Certificates shall collectively represent all of the
REMIC III Components whose designations are described in the first sentence
under the caption "REMIC III--Designations of the REMIC III Components" in the
Preliminary Statement hereto and the Class X-2 Certificates shall collectively
represent all of the REMIC III Components whose designations are described in
the second sentence under the caption "REMIC III--Designations of the REMIC III
Components" in the Preliminary Statement hereto. The REMIC III Residual Interest
shall not be certificated. The interests evidenced by the Regular Interest
Certificates, together with the REMIC III Residual Interest, shall collectively
constitute the entire beneficial ownership of REMIC III.
(c) The respective interests evidenced by the various Classes of the
Regular Interest Certificates shall constitute the "regular interests" (within
the meaning of Section 860G(a)(1) of the Code), and the REMIC III Residual
Interest shall constitute the sole "residual interest" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC III. None of the parties hereto, to
the extent it is within the control thereof, shall create or permit the creation
of any other "interests" in REMIC III (within the meaning of Treasury
Regulations Section 1.860D-1(b)(1)).
(d) The REMIC III Components of the Class X-1 Certificates, the REMIC
III Components of the Class X-2 Certificates and the Regular Interest
Certificates will have the alphabetic or alphanumeric designations indicated in
the Preliminary Statement under the caption "REMIC III".
(e) Each Class of Principal Balance Certificates shall have a Class
Principal Balance. As of the Closing Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall equal the amount set forth
opposite such Class in the table set forth in the Preliminary Statement under
the caption "REMIC III". On each Distribution Date, the Class Principal Balance
of each Class of Principal Balance Certificates shall be permanently reduced by
any distributions of principal made in respect of such Class of Certificates on
such Distribution Date pursuant to Section 4.01(a) and shall be further adjusted
in the manner and to the extent provided in Section 4.04(a). Except as provided
in the preceding sentence and except to the extent of the recovery of amounts
previously allocated as a Realized Loss as a result of the reimbursement from
principal collections of Nonrecoverable Advances, the Class Principal Balance of
each Class of Principal Balance Certificates shall not otherwise be increased or
reduced. Distributions in reimbursement of the Holders of any such Class of
Principal Balance Certificates for previously allocated Realized Losses and
Additional Trust Fund Expenses shall not constitute distributions of principal
and shall not result in any reduction of the Certificate Principal Balances of
such Certificates or of the related Class Principal Balance.
The Interest Only Certificates shall not have principal balances. For
purposes of accruing interest, however, each Class of Interest Only Certificates
shall have or be deemed to have a Class Notional Amount that is, as of any date
of determination, equal to: (i) in the case of the Class X-1 Certificates, the
total of the then Component Notional
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Amounts of the REMIC III Components of the Class X-1 Certificates; and (ii) in
the case of the Class X-2 Certificates, (A) from the Closing Date through and
including the Distribution Date in December 2012, the aggregate of the Component
Notional Amounts of those REMIC III Components of the Class X-2 Certificates for
which the related Class X-2 Termination Date has not occurred as of such date of
determination; and (B) subsequent to the Distribution Date in December 2012,
zero ($0).
None of the REMIC III Components of the Class X-1 Certificates or the
REMIC III Components of the Class X-2 Certificates shall have a principal
balance. For purposes of accruing interest, however, each REMIC III Component of
the Class X-1 Certificates and each REMIC III Component of the Class X-2
Certificates shall have a Component Notional Amount. The Component Notional
Amount of each REMIC III Component of the Class X-1 Certificates is, as of any
date of determination, equal to the then current Uncertificated Principal
Balance of the REMIC II Regular Interest that is the Corresponding REMIC II
Regular Interest for such REMIC III Component. The Component Notional Amount of
each REMIC III Component of the Class X-2 Certificates is, as of any date of
determination, equal to the then current Uncertificated Principal Balance of the
REMIC II Regular Interest that is the Corresponding REMIC II Regular Interest
for such REMIC III Component.
(f) Each Class of Regular Interest Certificates shall have or be deemed
to have a Pass-Through Rate. In each such case, the "Pass-Through Rate" for any
Interest Accrual Period shall equal: (a) with respect to the Class A-1
Certificates, an annual rate equal to 3.688% per annum; (b) with respect to the
Class A-2 Certificates, an annual rate equal to 4.133% per annum; (c) with
respect to the Class A-3 Certificates, an annual rate equal to 4.355% per annum;
(d) with respect to the Class A-4 Certificates, an annual rate equal to 4.521%
per annum; (e) with respect to the Class A-5 Certificates, an annual rate equal
to 4.705% per annum; (f) with respect to the Class A-6 Certificates, an annual
rate equal to 4.825% per annum; (g) with respect to the Class A-J Certificates,
an annual rate equal to the 4.868% per annum; (h) with respect to the Class B
Certificates, an annual rate equal to the lesser of (i) 4.945% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest B for
the subject Interest Accrual Period; (i) with respect to the Class C
Certificates, an annual rate equal to the lesser of (i) 5.119% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest C for
the subject Interest Accrual Period; (j) with respect to the Class D
Certificates, an annual rate equal to the lesser of (i) 5.279% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest D for
the subject Interest Accrual Period; (k) with respect to the Class E
Certificates, an annual rate equal to the lesser of (i) 5.406% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest E for
the subject Interest Accrual Period; (l) with respect to the Class F
Certificates, an annual rate equal to the REMIC II Remittance Rate in respect of
REMIC II Regular Interest F for the subject Interest Accrual Period minus
0.030%; (m) with respect to the Class G Certificates, an annual rate equal to
the REMIC II Remittance Rate in respect of REMIC II Regular Interest G for the
subject Interest Accrual Period; (n) with respect to the Class H Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interest H for the subject Interest Accrual Period; (o) with respect to
the Class J Certificates, an annual rate equal to the lesser of (i) 4.672% per
annum and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular
Interest J for the subject Interest Accrual Period; (p) with respect to the
Class K Certificates, an annual rate equal to the lesser of (i) 4.672% per annum
and (ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest K
for the subject Interest Accrual Period; (q) with respect to the Class L
Certificates, an annual rate equal to the lesser of (i) 4.672% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest L for
the subject Interest Accrual Period; (r) with respect to the Class M
Certificates, an annual rate equal to the lesser of (i) 4.672% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest M for
the subject Interest Accrual Period; (s) with respect to the Class N
Certificates, an annual rate equal to the lesser of (i) 4.672% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest N for
the subject Interest Accrual Period; (t) with respect to the Class P
Certificates, an annual rate equal to the lesser of (i) 4.672% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest P for
the subject Interest Accrual Period; (u) with respect to the Class Q
Certificates, an annual rate equal to the lesser of (i) 4.672% per annum and
(ii) the REMIC II Remittance Rate in respect of REMIC II Regular Interest Q for
the subject Interest Accrual Period; (v) with respect to the Class X-1
Certificates, an annual rate equal to the weighted average (expressed as a
percentage and rounded to at least six decimal places) of the Class X-1 Strip
Rates applicable to the respective REMIC III Components of the Class X-1
Certificates for such Interest Accrual Period, weighted on the basis of the
respective Component Notional
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Amounts of such REMIC III Components outstanding immediately prior to the
related Distribution Date; and (w) with respect to the Class X-2 Certificates,
an annual rate equal to the weighted average (expressed as a percentage and
rounded to at least six decimal places) of the Class X-2 Strip Rates applicable
to the respective REMIC III Components of the Class X-2 Certificates for such
Interest Accrual Period that are to be taken into account in such calculation as
set forth in the immediately succeeding sentence, weighted on the basis of the
respective Component Notional Amounts of such REMIC III Components outstanding
immediately prior to the related Distribution Date; provided, however, that for
each Interest Accrual Period following the Interest Accrual Period related to
the Distribution Date in December 2012, the Pass-Through Rate of the Class X-2
Certificates shall equal 0% per annum. For purposes of clause (w) of the
immediately preceding sentence, the Pass-Through Rate of the Class X-2
Certificates, for the initial Interest Accrual Period and each Interest Accrual
Period thereafter through and including the Interest Accrual Period related to
the Distribution Date in December 2012, shall be calculated taking into account
the respective Class X-2 Strip Rates of only those REMIC III Components of the
Class X-2 Certificates for which such Interest Accrual Period relates to a
Distribution Date that occurs on or before the related Class X-2 Termination
Date.
The "Class X-1 Strip Rate" for each REMIC III Component of the Class
X-1 Certificates, with respect to each Interest Accrual Period, is a rate per
annum equal to the greater of (I) zero and (II) either:
(A) if both (x) the Corresponding REMIC II Regular Interest for
such REMIC III Component of the Class X-1 Certificates also
constitutes a Corresponding REMIC II Regular Interest for a
REMIC III Component of the Class X-2 Certificates and (y)
such Interest Accrual Period relates to a Distribution Date
occurring on or before the Class X-2 Termination Date for
such Corresponding REMIC II Regular Interest for such REMIC
III Component of the Class X-2 Certificates, the excess, if
any, of (i) the Weighted Average REMIC I Remittance Rate for
such Interest Accrual Period, over (ii) the greater of (1)
the Reference Rate for such Interest Accrual Period and (2)
the Pass-Through Rate in effect for the related Distribution
Date for the Corresponding Class of Principal Balance
Certificates, or
(B) if either (1) the Corresponding REMIC II Regular Interest for
such REMIC III Component of the Class X-1 Certificates does
not constitute a Corresponding REMIC II Regular Interest for
a Component of the Class X-2 Certificates or (2) such
Interest Accrual Period relates to a Distribution Date
occurring after the Class X-2 Termination Date for such
Corresponding REMIC II Regular Interest of the Class X-2
Certificates, the excess, if any, of (i) the Weighted Average
REMIC I Remittance Rate for such Interest Accrual Period,
over (ii) the Pass-Through Rate in effect for the related
Distribution Date for the Corresponding Class of Principal
Balance Certificates.
The "Class X-2 Strip Rate" for each REMIC III Component of the Class
X-2 Certificates, (A) with respect to each Interest Accrual Period related to a
Distribution Date occurring on or before the related Class X-2 Termination Date
for such REMIC III Component, is a rate per annum equal to the greater of (I)
zero and (II) the excess, if any, of (i) the lesser of (x) the Reference Rate
for such Interest Accrual Period and (y) the Weighted Average REMIC I Remittance
Rate for such Interest Accrual Period, over (ii) the Pass-Through Rate in effect
during such Interest Accrual Period for the Corresponding Class of Principal
Balance Certificates, and (B) with respect to each Interest Accrual Period
related to a Distribution Date occurring after the related Class X-2 Termination
Date for such REMIC III Component, is a rate per annum equal to zero.
(g) The REMIC III Residual Interest shall not have a principal balance
and shall not bear interest.
SECTION 2.18. Acceptance of Grantor Trusts; Issuance of the Class V and
Class R Certificates.
(a) It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest Received
by the Trust with respect to the Pooled Mortgage Loans that are
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ARD Mortgage Loans and/or any successor REO Pooled Mortgage Loans with respect
thereto constitute a Grantor Trust for federal income tax purposes and, further,
that such segregated pool of assets be designated as "Grantor Trust V" and that
the affairs of such portion of the Trust Fund shall be conducted so as to
qualify as, a Grantor Trust. The provisions of this Agreement shall be
interpreted consistently with the foregoing intention. The Trustee, by its
execution and delivery hereof, acknowledges the assignment to it of the assets
of Grantor Trust V and declares that it holds and will hold such assets in trust
for the exclusive use and benefit of all present and future Holders of the Class
V Certificates. Concurrently with the assignment to the Trustee of the assets
included in Grantor Trust V, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, to or upon the order of the
Depositor, the Class V Certificates in authorized denominations evidencing the
entire beneficial ownership of Grantor Trust V and initially registered in the
name of ARCap CMBS Fund II REIT, Inc. The rights of the Holders of the Class V
Certificates to receive distributions from the proceeds of Grantor Trust V, and
all ownership interests of such Holders in and to such distributions, shall be
as set forth in this Agreement.
(b) The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all right, title and interest of the Depositor in and to the REMIC I Residual
Interest, the REMIC II Residual Interest and the REMIC III Residual Interest to
the Trustee for the benefit of the Holders of the Class R Certificates. It is
the intention of the parties hereto that the segregated pool of assets
consisting of the REMIC I Residual Interest, the REMIC II Residual Interest and
the REMIC III Residual Interest constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
"Grantor Trust R" and that the affairs of such portion of the Trust Fund shall
be conducted so as to qualify as, a Grantor Trust. The provisions of this
Agreement shall be interpreted consistently with the foregoing intention. The
Trustee, by its execution and delivery hereof, acknowledges the assignment to it
of the assets of Grantor Trust R and declares that it holds and will hold such
assets in trust for the exclusive use and benefit of all present and future
Holders of the Class R Certificates. Concurrently with the assignment to the
Trustee of the assets included in Grantor Trust R, the Certificate Registrar
shall execute, and the Authenticating Agent shall authenticate and deliver, to
or upon the order of the Depositor, the Class R Certificates in authorized
denominations evidencing the entire beneficial ownership of Grantor Trust R. The
rights of the Holders of the Class R Certificates to receive distributions from
the proceeds of Grantor Trust R, and all ownership interests of such Holders in
and to such distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions.
(a) Each Master Servicer shall be obligated to service and administer
the Serviced Mortgage Loans opposite which such Master Servicer's name is set
forth on the Pooled Mortgage Loan Schedule and any Replacement Pooled Mortgage
Loans delivered in replacement thereof as contemplated in Section 2.03 and shall
be deemed to be the "applicable Master Servicer" with respect to any REO
Property acquired in respect of any such Mortgage Loan. Each of the Master
Servicers and the Special Servicer shall service and administer the Serviced
Mortgage Loans and any Administered REO Properties that it is obligated to
service and administer pursuant to this Agreement on behalf of the Trustee, and
in the best interests and for the benefit of the Certificateholders (or, in the
case of any Serviced Mortgage Loan Group, of the Certificateholders and the
related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a collective whole,
in accordance with any and all applicable laws, the terms of this Agreement, and
the terms of the respective Serviced Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard. In
clarification of, and neither in addition to nor in deletion of the duties and
obligations of the Master Servicers or the Special Servicer pursuant to this
Agreement, no provision herein contained shall be construed as an express or
implied guarantee by either Master Servicer or the Special Servicer of the
collectibility or recoverability of payments on the Mortgage Loans or shall be
construed to impair or adversely affect any rights or benefits provided by this
Agreement to such Master Servicer or the Special Servicer (including with
respect to Master Servicing Fees or the right to be reimbursed for Advances).
Any provision in this Agreement for any Advance by a Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent is intended solely to provide
liquidity for the benefit of the Certificateholders and, if applicable, the
Serviced Non-Pooled Mortgage Loan Noteholders, and not as credit support or
otherwise to impose on any such Person the risk of loss with respect to one or
more of the Mortgage Loans. No provision hereof shall be construed to impose
liability on any Master Servicer or Special Servicer for the reason that any
recovery to the Certificateholders (or, in the case of any Serviced Mortgage
Loan Group, to the Certificateholders and the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)) in respect of a Mortgage Loan at any time after a
determination of present value recovery made in its reasonable and good faith
judgment in accordance with the Servicing Standard by such Master Servicer or
Special Servicer hereunder at any time is less than the amount reflected in such
determination. Without limiting the foregoing, and subject to Section 3.21, (i)
each Master Servicer shall service and administer all Performing Serviced
Mortgage Loans for which it is the Master Servicer, (ii) the Special Servicer
shall service and administer (x) each Serviced Mortgage Loan (other than a
Corrected Mortgage Loan) as to which a Servicing Transfer Event has occurred,
and (y) each Administered REO Property; provided, however, that the applicable
Master Servicer shall continue to (A) make P&I Advances required hereunder with
respect to each Pooled Mortgage Loan for which it is the applicable Master
Servicer that constitutes a Specially Serviced Mortgage Loan and each successor
REO Pooled Mortgage Loan in respect thereof, (B) make Servicing Advances
required hereunder with respect to any Specially Serviced Mortgage Loans and
Administered REO Properties (and related REO Pooled Mortgage Loans) for which it
is the applicable Master Servicer, (C) receive payments, collect information and
deliver reports to the Certificate Administrator and the Trustee required
hereunder with respect to any Specially Serviced Mortgage Loans and Administered
REO Properties (and the related REO Mortgage Loans) for which it is the
applicable Master Servicer, and (D) render such incidental services with respect
to any Specially Serviced Mortgage Loans and Administered REO Properties for
which it is the applicable Master Servicer as are specifically provided for
herein. In addition, each Master Servicer shall notify the Special Servicer
within three Business Days following its receipt of any collections on any
Specially Serviced Mortgage Loan, the Special Servicer shall within one Business
Day thereafter notify such Master Servicer with instructions on how to apply
such collections and such Master Servicer shall apply such collections in
accordance with such instructions within one Business Day following such Master
Servicer's receipt of such notice.
Certain provisions of this Article III make reference to their
applicability to Serviced Mortgage Loans. Notwithstanding such explicit
references, references to "Serviced Mortgage Loans" contained in this Article
III, unless otherwise specified, shall be construed to refer also to each
Serviced Mortgage Loan Group in its entirety (but any other
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term that is defined in Article I and used in this Article III shall be
construed according to such definition without regard to this sentence).
(b) Subject to Section 3.01(a) and the other terms and provisions of
this Agreement, the Master Servicers and the Special Servicer shall each have
full power and authority, acting alone or, subject to Section 3.22, through
Sub-Servicers, 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 Master Servicer (with
respect to those Serviced Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement) and the Special Servicer (with respect to
the Specially Serviced Mortgage Loans and Administered REO Properties), in its
own name or in the name of the Trustee, is hereby authorized and empowered by
the Trustee and (in the case of each Serviced Mortgage Loan Group) the related
Serviced Non-Pooled Mortgage Loan Noteholders, to execute and deliver, on behalf
of the Certificateholders, the Trustee and (in the case of each Serviced
Mortgage Loan Group) each Serviced Non-Pooled Mortgage Loan Noteholder, or any
of them: (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by the Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and other related collateral; (ii) any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
partial or full defeasance, and all other comparable instruments; and (iii)
subject to Sections 3.08, 3.20 and 3.24, any and all assumptions, modifications,
waivers, substitutions, extensions, amendments, consents to transfers of
interests in Borrowers, consents to any subordinate financings to be secured by
any related Mortgaged Property, consents to any mezzanine financing to be
secured by ownership interests in a Borrower, consents to and monitoring of the
application of any proceeds of insurance policies or condemnation awards to the
restoration of the related Mortgaged Property or otherwise, documents relating
to the management, operation, maintenance, repair, leasing and marketing of the
related Mortgaged Properties (including agreements and requests by any Borrower
with respect to modifications of the standards of operation and management of
the Mortgaged Properties or the replacement of asset managers), documents
exercising any or all of the rights, powers and privileges granted or provided
to the holder of any Serviced Mortgage Loan under the related Mortgage Loan
Documents, lease subordination agreements, non-disturbance and attornment
agreements or other leasing or rental arrangements that may be requested by any
Borrower or its tenants, documents granting, modifying or releasing (or joining
the Borrower therein) any easements, covenants, conditions, restrictions,
equitable servitudes, or land use or zoning requirements with respect to the
Mortgaged Properties, instruments relating to the custody of any collateral that
now secures or hereafter may secure any Serviced Mortgage Loan and any other
consents. Subject to Section 3.10, the Trustee shall, at the written request of
a Servicing Officer of either Master Servicer or the Special Servicer, furnish,
or cause to be so furnished, to such Master Servicer or the Special Servicer, as
the case may be, any limited powers of attorney and other documents (each of
which shall be prepared by such Master Servicer or the Special Servicer, as the
case may be) necessary or appropriate to enable it to carry out its servicing
and administrative duties hereunder; provided that the Trustee shall not be held
liable for any misuse of any such power of attorney by either Master Servicer or
Special Servicer. Without limiting the generality of the foregoing, the Trustee
shall execute and deliver to each Master Servicer and the Special Servicer, on
or before the Closing Date, a power of attorney substantially in the form
attached as Exhibit L hereto. Notwithstanding anything contained herein to the
contrary, neither a 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 such Master Servicer's or the
Special Servicer's, as applicable, representative capacity; or (ii) take any
action with the intent to cause, and that actually causes, the Trustee to be
registered to do business in any state. Each Master Servicer and the Special
Servicer shall indemnify (out of its own funds without reimbursement therefor)
the Trustee for any and all costs, liabilities and expenses incurred by the
Trustee in connection with the negligent or willful misuse of such power of
attorney by such Master Servicer or the Special Servicer, as the case may be.
(c) The applicable Master Servicer or the Special Servicer, as the case
may be, in accordance with this Agreement, shall service and administer each
Cross-Collateralized Group as a single Mortgage Loan as and when necessary and
appropriate consistent with the Servicing Standard and applicable law and in
accordance with this Agreement.
(d) The relationship of each Master Servicer and the Special Servicer
to the Trustee and, unless they are the same Person, one another (whether
between a Master Servicer and the other Master Servicer or a Master Servicer
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and the Special Servicer) under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) Notwithstanding any provision of this Agreement to the contrary,
each Serviced Mortgage Loan Group shall be serviced and administered under this
Agreement only for as long as the Pooled Mortgage Loan that is a part of such
Serviced Mortgage Loan Group or the beneficial interest in any related REO
Property constitutes an asset of the Trust Fund.
(f) Nothing contained in this Agreement shall limit the ability of
either Master Servicer to lend money to (to the extent not secured, in whole or
in part, by any Mortgaged Property), accept deposits from and otherwise
generally engage in any kind of business or dealings with any Borrower as though
such Master Servicer was not a party to this Agreement or to the transactions
contemplated hereby; provided, however, that this sentence shall not be
construed to modify the Servicing Standard.
(g) The parties hereto acknowledge that the Non-Trust-Serviced Pooled
Mortgage Loan is subject to the terms and conditions of the related Mortgage
Loan Group Intercreditor Agreement. The parties hereto recognize the respective
rights and obligations of the "Holders" and "Lenders" under the Mortgage Loan
Group Intercreditor Agreement for the Non-Trust-Serviced Pooled Mortgage Loan,
including with respect to the allocation of collections and losses on or in
respect of such Non-Trust-Serviced Pooled Mortgage Loan and the related
Non-Pooled Pari Passu Companion Loans and the making of payments to the
"Holders" and "Lenders" in accordance with such Mortgage Loan Group
Intercreditor Agreement and the Non-Trust Servicing Agreement. The parties
hereto further acknowledge that, pursuant to the Mortgage Loan Group
Intercreditor Agreement for the Non-Trust-Serviced Pooled Mortgage Loan, such
Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Pari Passu
Companion Loans are to be serviced and administered by the Non-Trust Master
Servicer and Non-Trust Special Servicer in accordance with the Non-Trust
Servicing Agreement. Although the Non-Trust-Serviced Pooled Mortgage Loans are
not Serviced Mortgage Loans hereunder, WFB as a Master Servicer hereunder (and
any successors to WFB in such capacity) shall have certain duties and shall
constitute the "applicable Master Servicer" with respect to each such
Non-Trust-Serviced Pooled Mortgage Loan.
For so long as the Non-Trust-Serviced Pooled Mortgage Loan or any
successor REO Pooled Mortgage Loan with respect thereto is part of the Mortgage
Pool and such Non-Trust-Serviced Pooled Mortgage Loan and its related Non-Pooled
Pari Passu Companion Loans, or any related REO Property with respect thereto,
are being serviced and administered under the Non-Trust Servicing Agreement, the
applicable Master Servicer shall promptly notify the Trustee and the Controlling
Class Representative of any defaults on the part of the Non-Trust Master
Servicer and/or the Non-Trust Special Servicer of which the applicable Master
Servicer is aware. If there are at any time amounts due from the Trust, as
holder of the Non-Trust-Serviced Pooled Mortgage Loan, to any party under the
related Mortgage Loan Group Intercreditor Agreement or the Non-Trust Servicing
Agreement, the applicable Master Servicer shall notify the Special Servicer and
the Controlling Class Representative, and the applicable Master Servicer may pay
such amounts out of its Collection Account, and, if and to the extent that the
deposits in such Master Servicer's Collection Account are insufficient, may (or,
at the direction of the Controlling Class Representative, shall) pay such
amounts from its own funds (provided that any such payment from its own funds
shall constitute, and be reimbursable as, a Servicing Advance). Except as
otherwise expressly addressed in Section 3.20, with respect to modifications,
waivers and amendments of the Non-Trust-Serviced Pooled Mortgage Loans (and a
modification, waiver or amendment of the Non-Trust Servicing Agreement and/or
the related Mortgage Loan Group Intercreditor Agreement shall not be subject to
the operation of this sentence but shall instead be subject to the operation of
the next succeeding sentence), if (i) the Trustee is requested to take any
action in its capacity as holder of the Non-Trust-Serviced Pooled Mortgage Loan,
pursuant to the related Mortgage Loan Group Intercreditor Agreement and/or the
Non-Trust Servicing Agreement, or (ii) a Responsible Officer of the Trustee
receives actual notice of a default or event of default on the part of any other
party under the Non-Trust Servicing Agreement, then (subject to the next
paragraph) the Trustee shall notify (in writing), and act in accordance with the
instructions of, the Controlling Class Representative; provided that, if such
instructions are not provided within a reasonable time period (not to exceed ten
(10) Business Days or such lesser response time as is afforded under the related
Mortgage Loan Documents or Non-Trust Servicing Agreement, as applicable) or if
the Trustee is not permitted (pursuant
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to the next paragraph) to follow such instructions, then the Trustee will take
such action or inaction, as directed in writing by the Holders of the
Certificates entitled to a majority of the Voting Rights within a reasonable
period of time that does not exceed such response time as is afforded under the
related Mortgage Loan Documents or Non-Trust Servicing Agreement, as
applicable); and provided, further, that if the Trustee's consent is sought with
respect to any loan-level action under the Non-Trust Servicing Agreement as to
which, if such action were taken under this Agreement, written confirmation
would be required from a Rating Agency to the effect that such action would not,
in and of itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates, then the Trustee shall not grant such consent without first
having obtained such written confirmation (at the expense of the party
requesting such approval of the Trustee, if a Certificateholder or a party to
this Agreement, otherwise from the related Master Servicer's Collection
Account). If the Trustee receives a request from any party to the Non-Trust
Servicing Agreement for consent to or approval of a modification, waiver or
amendment of the Non-Trust Servicing Agreement and/or the related Mortgage Loan
Group Intercreditor Agreement, or the adoption of any servicing agreement that
is the successor to and/or in replacement of the Non-Trust Servicing Agreement
in effect as of the Closing Date or a change in servicer under the Non-Trust
Servicing Agreement, then the Trustee shall not grant such consent or approval
unless it receives the consent of the applicable Master Servicer under this
Agreement, the consent of the Controlling Class Representative and a written
confirmation (at the expense of the party requesting such approval of the
Trustee, if a Certificateholder or a party to this Agreement, otherwise from the
related Master Servicer's Collection Account) from each Rating Agency to the
effect that such consent or approval would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates. During the continuation of any
event of default or other default under the Non-Trust Servicing Agreement, each
of the Trustee and the applicable Master Servicer shall have the right to take
all actions 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). The reasonable costs and expenses incurred by the Trustee in
connection with such enforcement shall, at the direction of the Trustee, be paid
by, and reimbursable to, the applicable Master Servicer as Servicing Advances
(subject to Section 3.11(h)). The Trustee and the applicable Master Servicer
shall each promptly forward all material notices or other communications
delivered to it in connection with each Non-Trust Servicing Agreement to the
other such party, the Depositor and the Controlling Class Representative and, if
such notice or communication is in the nature of a notice or communication that
would be required to be delivered to the Rating Agencies if the
Non-Trust-Serviced Pooled Mortgage Loan were a Serviced Mortgage Loan, to the
Rating Agencies.
Notwithstanding anything herein to the contrary: (i) the Trustee shall
not have any right or obligation to consult with or to seek and/or obtain
consent or approval from any Controlling Class Representative prior to acting
during the period following any resignation or removal of a Controlling Class
Representative and before a replacement is selected; and (ii) no advice,
direction or objection from or by the Controlling Class Representative, as
contemplated by the prior paragraph, may (and the Trustee shall ignore and act
without regard to any such advice, direction or objection that the Trustee has
determined, in its reasonable, good faith judgment, would): (A) require or cause
the Trustee to violate applicable law, or any other Section of this Agreement,
(B) result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, a Master Servicer, the Special Servicer, the
Fiscal Agent, the Certificate Administrator, the Trustee or any of their
respective Affiliates, members, managers, officers, directors, employees or
agents, to any material claim, suit or liability or (D) expand the scope of a
Trustee's responsibilities under this Agreement.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The applicable Master Servicer and the Special Servicer shall make
efforts consistent with the Servicing Standard and the terms of this Agreement
to collect all payments required under the terms and provisions of the
respective Serviced Mortgage Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard; provided that none of the Master Servicers or the Special Servicer
shall, with respect to any Mortgage Loan that constitutes an ARD Mortgage Loan
after its Anticipated Repayment Date, take any enforcement action with respect
to the payment of Post-ARD Additional Interest (other than the making of
requests for its collection), and the Special Servicer may do so only if (i) the
taking of an enforcement action with respect to the payment of other amounts due
under such Mortgage Loan is, in the reasonable judgment of the Special Servicer,
and without
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regard to such Post-ARD Additional Interest, also necessary, appropriate and
consistent with the Servicing Standard or (ii) all other amounts due under such
Mortgage Loan have been paid, the payment of such Post-ARD Additional Interest
has not been forgiven in accordance with Section 3.20 and, in the reasonable
judgment of the Special Servicer, exercised in accordance with the Servicing
Standard, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated Advance Interest. Consistent with the
foregoing, the applicable Master Servicer may grant case-by-case waivers of
Default Charges in connection with a late payment on a Serviced Mortgage Loan,
provided that, for any waiver thereof under any Serviced Mortgage Loan where
both (x) any Advance Interest is then outstanding and (y) either (1) the waiver
would be the fourth (or more) such waiver for such Mortgage Loan or (2) such
Mortgage Loan is 60 days or more delinquent in respect of any Monthly Payment,
the applicable Master Servicer shall have obtained the consent of the Special
Servicer, which shall have, as and to the extent contemplated by Section 3.24,
obtained the consent of the Controlling Class Representative.
(b) At least 90 days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the Special Servicer)
and shall request confirmation that the Balloon Payment will be paid by such
maturity date.
(c) With respect to the Non-Trust-Serviced Pooled Mortgage Loan:
(i) promptly following the Closing Date, the applicable Master
Servicer shall deliver, or cause to be delivered, written notice to the
Non-Trust Master Servicer stating that, as of the Closing Date, the Trustee
is the holder of such Non-Trust-Serviced Pooled Mortgage Loan and directing
such Non-Trust Master Servicer to remit to the applicable Master Servicer
all amounts payable to, and to forward, deliver or otherwise make available,
as the case may be, to the applicable Master Servicer all reports,
statements, documents, communications and other information that are to be
forwarded, delivered or otherwise made available to, the holder of such
Non-Trust-Serviced Pooled Mortgage Loan under the related Mortgage Loan
Group Intercreditor Agreement and the applicable Non-Trust Servicing
Agreement;
(ii) the applicable Master Servicer shall, on the day of receipt
thereof, if such Master Servicer is the same Person or an Affiliate of the
Non-Trust Master Servicer, and otherwise within one Business Day following
the receipt thereof, deposit into its Collection Account all amounts
received by it from the Non-Trust Master Servicer or any other party under
the Non-Trust Servicing Agreement;
(iii) if, as of the close of business on the Determination Date on
which a Collection Period ends in any calendar month, the applicable Master
Servicer has not received a Monthly Payment due on such Non-Trust-Serviced
Pooled Mortgage Loan during such Collection Period for any reason (whether
because such Due Date has not yet occurred, the grace period for such
Monthly Payment has not yet expired, the related Borrower has failed to make
such Monthly Payment, the remittance date for such Monthly Payment has not
yet occurred under the terms of the applicable Non-Trust Servicing Agreement
or the Non-Trust Master Servicer has failed to timely make a remittance of
such Monthly Payment that it is required to have made), then (A) for the
avoidance of doubt, the applicable Master Servicer shall make a P&I Advance
with respect to such amount on the Master Servicer Remittance Date
immediately succeeding such Collection Period, subject to and in accordance
with Section 4.03 (and, in accordance with such Section 4.03, if the
applicable Master Servicer fails to make such P&I Advance, then the Trustee
or, if it fails to do so, the Fiscal Agent, shall make such P&I Advance);
and (B) notwithstanding any contrary provision of Section 4.03, Advance
Interest shall not commence accruing on such P&I Advance until the date that
is (i) one calendar day after the later of the Due Date for such Monthly
Payment or the expiration of the grace period, if any, applicable to such
Due Date, but only if the Borrower failed to make its Monthly Payment on
such date, or (ii) otherwise, the date that is one calendar day after the
date on which the Non-Trust Master Servicer is required to remit such
Monthly Payment to the applicable Master Servicer pursuant to the terms of
the applicable Non-Trust Servicing Agreement and/or Mortgage Loan Group
Intercreditor Agreement; and
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(iv) if the applicable Master Servicer has notice, or a Servicing
Officer of the Master Servicer has knowledge, of a material failure of the
Non-Trust Master Servicer to make a remittance that it is required to make
to such applicable Master Servicer under the terms of the Non-Trust
Servicing Agreement and/or the related Mortgage Loan Group Intercreditor
Agreement, then such applicable Master Servicer shall provide notice of such
failure to such Non-Trust Master Servicer, the trustee or other holder of
the related Non-Pooled Pari Passu Companion Loans under the Non-Trust
Servicing Agreement, the Trustee and the Controlling Class Representative.
(d) With respect to each Pooled Mortgage Loan for which the Due Date is
scheduled to occur on the 5th day of each month (subject to any applicable
business day convention), each of which Pooled Mortgage Loans permits
prepayments (after the end of any applicable lockout period) to be made on any
day of a month without an accompanying payment of interest that would have
accrued to the next Due Date, to the extent that a voluntary Principal
Prepayment is received by WFB as the applicable Master Servicer after the end of
the Collection Period ending in such month, such Principal Payment and any
accompanying interest (and any accompanying Prepayment Premium or Yield
Maintenance Charge that is Received by the Trust) (and the interest referred to
above shall be net of any portion thereof that is similar to a Prepayment
Interest Excess representing interest accrued from and after the Due Date in
such month, which portion shall be retained by the applicable Master Servicer as
Additional Master Servicer Compensation) will nevertheless be distributed to
Certificateholders on the Distribution Date occurring in such month if the
applicable Master Servicer (a) provides notice to the Certificate Administrator
and the Servicer Report Administrator no later than 2:00 p.m. (New York City
time) two (2) Business Days prior to the related Distribution Date reflecting
the related Borrower's intention to make such payment, and (b) both (i) remits
such payment (together with, solely in the case of a Principal Prepayment made
before a Due Date, a payment from such Master Servicer's own funds in an amount
equal to the interest that would have accrued (at the related Net Mortgage Rate)
on the Principal Prepayment from and including the date of the Principal
Prepayment to but excluding such Due Date) to the Certificate Administrator not
later than 1:00 p.m. (New York City time) on the related Master Servicer
Remittance Date and (ii) provides to the Certificate Administrator a revised
CMSA Loan Periodic Update File not later than 9:00 a.m. (New York City time) on
the related Master Servicer Remittance Date. If the timing and notice
requirements set forth in (a) and (b) above are satisfied with respect to such
voluntary Principal Prepayment, such payment shall be included as part of the
Master Servicer Remittance Amount for WFB for the related Distribution Date and
the Principal Distribution Amount that would otherwise have been in effect for
the related Distribution Date shall be increased by the amount of such Principal
Prepayment. If the timing and notice requirements set forth in (a) and (b) above
are not satisfied with respect to such voluntary Principal Prepayment, then (A)
such circumstances shall constitute an Event of Default of the applicable Master
Servicer but the applicable Master Servicer shall be entitled to cure such Event
of Default (and may not be terminated under Article VII unless it does not
effect such cure) by making, not later than the Master Servicer Remittance Date
occurring in the month immediately following the month in which the Principal
Prepayment occurred, a payment of cash, from its own funds without right of
reimbursement therefor, to the Certificate Administrator (for deposit in the
Distribution Account) in an amount equal to the sum of one month's interest at
the Net Mortgage Rate of the related Pooled Mortgage Loan on a principal amount
equal to such Principal Prepayment and, solely in the case of a Principal
Prepayment made before a Due Date, the interest that would have accrued (at the
related Net Mortgage Rate) on the Principal Prepayment from and including the
date of the Principal Prepayment to but excluding such Due Date; and (B) such
Principal Prepayment (and such accompanying Prepayment Premium or Yield
Maintenance Charge), and any accompanying interest will be deemed to have been
received during the Collection Period related to the Distribution Date occurring
in the month immediately following the month in which such Principal Prepayment
was made. Notwithstanding any contrary provision of the foregoing, WFB as the
applicable Master Servicer shall not be required to make (and shall not be in
default hereunder for not making) a payment of one month's interest otherwise
described in the preceding sentence to the extent that such interest otherwise
constitutes all or a portion of any Compensating Interest Payment that WFB as
the applicable Master Servicer otherwise makes in respect of the related Pooled
Mortgage Loan. In the case of each Pooled Mortgage Loan for which the Stated
Maturity Date is scheduled to occur on the 5th day of any month (subject to any
applicable business day convention), if the related Balloon Payment due on such
Stated Maturity Date is timely received, then WFB as the applicable Master
Servicer shall (a) provide notice to the Certificate Administrator and the
Servicer Report Administrator no later than 2:00 p.m. (New York City time) two
(2) Business Days prior to the related Distribution Date reflecting the related
Borrower's intention to make
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such payment, and (b) both (i) remit such payment to the Certificate
Administrator not later than 1:00 p.m. (New York City time) on the related
Master Servicer Remittance Date and (ii) provide to the Certificate
Administrator a revised CMSA Loan Periodic Update File not later than 9:00 a.m.
(New York City time) on the related Master Servicer Remittance Date, in which
case such Balloon Payment shall be considered to have been received during the
Collection Period related to the Distribution Date occurring in such month for
purposes of the remittance of the Master Servicer Remittance Amount for WFB for
such Distribution Date and the distribution of the Available Distribution Amount
and the Principal Distribution Amount for such Distribution Date. For the
avoidance of doubt, if such Balloon Payment is not timely received on or before
such Stated Maturity Date, then WFB as the applicable Master Servicer shall make
the applicable P&I Advance on the Master Servicer Remittance Date immediately
succeeding such Collection Period, subject to and in accordance with Section
4.03(b) (and, in accordance with such Section 4.03(b), if the applicable Master
Servicer fails to make such P&I Advance, then the Trustee or, if it fails to do
so, the Fiscal Agent, shall make such P&I Advance).
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Servicing Accounts"), in which all Escrow Payments
received by it with respect to the Serviced Mortgage Loans for which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Escrow Payments shall be held,
each Servicing Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Servicing
Accounts maintained by it, and may apply Escrow Payments held therein with
respect to any Serviced Mortgage Loan (together with interest earned thereon),
only as follows: (i) to effect the payment of real estate taxes, assessments,
insurance premiums (including, premiums on any Environmental Insurance Policy),
ground rents (if applicable) and comparable items in respect of the related
Mortgaged Property; (ii) to reimburse such Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, for any unreimbursed
Servicing Advances made thereby with respect to such Mortgage Loan to cover any
of the items described in the immediately preceding clause (i); (iii) to refund
to the related Borrower any sums as may be determined to be overages; (iv) to
pay interest or other income, if required and as described below, to the related
Borrower on balances in the Servicing Account (or, if and to the extent not
payable to the related Borrower to pay such interest or other income (up to the
amount of any Net Investment Earnings in respect of such Servicing Account for
each Collection Period) to such Master Servicer); (v) disburse Insurance
Proceeds if required to be applied to the repair or restoration of the related
Mortgaged Property, (vi) after an event of default, to pay the principal of,
accrued interest on and any other amounts payable with respect to such Mortgage
Loan; (vii) to withdraw amounts deposited in the Servicing Account in error; or
(viii) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. Each Master Servicer shall pay or
cause to be paid to the related Borrowers interest and other income, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
and to the extent required by law or the terms of the related Mortgage Loan
Documents. If a Master Servicer shall deposit in a Servicing Account maintained
by it 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. Promptly after any Escrow Payments are received by the
Special Servicer from the Borrower under any Serviced Mortgage Loan, and in any
event within one Business Day after any such receipt, the Special Servicer shall
remit such Escrow Payments to the applicable Master Servicer for deposit in the
applicable Servicing Account(s).
(b) The applicable Master Servicer shall as to each Serviced Mortgage
Loan (including each Specially Serviced Mortgage Loan): (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 consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment with
respect to any Serviced Mortgage Loan, the applicable Master Servicer shall
apply Escrow Payments as allowed under the terms of the related Mortgage Loan
Documents; provided that if such Mortgage Loan does not require the related
Borrower to escrow for the payment of real estate taxes, assessments, insurance
premiums, ground
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rents (if applicable) and similar items, the applicable Master Servicer (or, if
such Mortgage Loan becomes a Specially Serviced Mortgage Loan, the Special
Servicer) shall, subject to and in accordance with the Servicing Standard, use
reasonable efforts to enforce the requirement of the related Mortgage Loan
Documents that the related Borrower make payments in respect of such items at
the time they first become due.
(c) In accordance with the Servicing Standard, but subject to Section
3.11(h), the applicable Master Servicer, with respect to each Serviced Mortgage
Loan for which it is the Master Servicer (including each such Mortgage Loan that
is a Specially Serviced Mortgage Loan) shall 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 timely payment of (i) real
estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies (including, premiums on
any Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date, in each instance if and to the extent that (x)
Escrow Payments (if any) collected from the related Borrower are insufficient to
pay such item when due, and (y) the related Borrower has failed to pay such item
on a timely basis; provided that, in the case of amounts described in the
preceding clause (i), the applicable Master Servicer shall not make a Servicing
Advance of any such amount if such Master Servicer reasonably anticipates (in
accordance with the Servicing Standard) that such amounts will be paid by the
related Borrower on or before the applicable penalty date, in which case such
Master Servicer shall use its best reasonable efforts consistent with the
Servicing Standard to confirm whether such amounts have been paid and, subject
to Section 3.11(h), shall make a Servicing Advance of such amounts, if
necessary, not later than five Business Days following confirmation by such
Master Servicer that such amounts have not been paid by the applicable penalty
date. All such Advances shall be reimbursable in the first instance from related
collections from the Borrowers and further as provided in Section 3.05(a). No
costs incurred by a Master Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of any
Mortgaged Property shall, for purposes hereof, including calculating monthly
distributions to Certificateholders, be added to the respective unpaid principal
balances or Stated Principal Balances of the subject Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit; provided that
this sentence shall not be construed to limit the rights of the applicable
Master Servicer or the Special Servicer on behalf of the Trust to enforce any
obligations of the related Borrower under such Mortgage Loan.
(d) Each Master Servicer shall establish and maintain one or more
segregated accounts ("Reserve Accounts"), in which all Reserve Funds, if any,
received by it with respect to the Serviced Mortgage Loans as to which it is the
applicable Master Servicer, shall be deposited and retained, separate and apart
from its own funds. Subject to any terms of the related Mortgage Loan Documents
that specify the nature of the account in which Reserve Funds shall be held,
each Reserve Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals from the Reserve
Accounts maintained by it, and may apply Reserve Funds held therein with respect
to any Serviced Mortgage Loan (together with interest earned thereon), only as
follows: (i) in the case of Reserve Funds that are intended to cover specific
costs and expenses, to pay for, or to reimburse the related Borrower in
connection with, the costs associated with the related tenant improvements,
leasing commissions, repairs, replacements, capital improvements and/or
environmental testing and remediation, litigation and/or other special expenses
at or with respect to the related Mortgaged Property for which such Reserve
Funds were intended and to refund the related Borrower any sums as may be
determined to be overages; (ii) in the case of Reserve Funds intended to cover
debt service payments, to apply amounts on deposit therein in respect of
principal and interest on such Mortgage Loan; (iii) to reimburse such Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
for any unreimbursed Advances made thereby with respect to such Mortgage Loan to
cover any of the items described in the immediately preceding clauses (i) and
(ii) (or, if any such Advance has become an Unliquidated Advance, to transfer to
the related Collection Account an amount equal to the reimbursement that would
otherwise have been made as described in this clause (iii)); (iv) to release
such Reserve Funds to the related Borrower if the conditions precedent for such
release are satisfied or otherwise apply such Reserve Funds in accordance with
the related Mortgage Loan Documents if the conditions precedent for such release
are not satisfied; (v) to pay interest or other income, if required and as
described below, to the related Borrower on balances in the Reserve Account (or,
if and to the extent not payable to the related Borrower, to pay such interest
or other income (up to the amount of any Net Investment Earnings in respect of
such Reserve Account for each Collection Period) to such Master
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Servicer); (vi) to withdraw amounts deposited in such Reserve Account in error;
(vii) after an event of default, to pay the principal of, accrued interest on,
and any other amounts payable with respect to such Mortgage Loan; or (viii) to
clear and terminate the Reserve Account at the termination of this Agreement in
accordance with Section 9.01. If the Borrower under any Serviced Mortgage Loan
delivers a Letter of Credit in lieu of Reserve Funds, then the applicable Master
Servicer shall make draws on such Letter of Credit at such times and for such
purposes as it would have made withdrawals from a Reserve Account and, to the
extent consistent with the Servicing Standard, applicable law and the related
Mortgage Loan Documents, in order to convert the amount of such Letter of Credit
into Reserve Funds. Promptly after any Reserve Funds are received by the Special
Servicer from any Borrower, and in any event within one Business Day of such
receipt, the Special Servicer shall remit such Reserve Funds to the applicable
Master Servicer for deposit in the applicable Reserve Account(s). Any
out-of-pocket expenses, including reasonable attorneys' fees and expenses,
incurred by a Master Servicer or the Special Servicer to enable such Master
Servicer or the Special Servicer, as the case may be, to make any draw under any
Letter of Credit shall constitute a Servicing Advance, and such Master Servicer
or the Special Servicer, as the case may be, shall make reasonable efforts to
recover such expenses from the related Borrower to the extent the Borrower is
required to pay such expenses under the terms of the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Serviced Mortgage Loan, the
applicable Master Servicer shall request from the related Borrower written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any other action or remediation with respect to
environmental matters is required to have been taken or completed pursuant to
the terms of a Serviced Mortgage Loan, the applicable Master Servicer shall
request from the related Borrower written confirmation of such action and
remediations within a reasonable time after the later of the Closing Date and
the date as of which such action or remediations are required to have been taken
or completed. To the extent that a Borrower shall fail to promptly respond to
any inquiry described in this Section 3.03(e), the applicable Master Servicer
shall notify the Trustee, the Special Servicer, the Controlling Class
Representative and (if affected) the related Serviced Non-Pooled Mortgage Loan
Noteholder(s). The applicable Master Servicer shall promptly notify the Trustee,
the Special Servicer, the Controlling Class Representative and any affected
Serviced Non-Pooled Mortgage Loan Noteholders if such Master Servicer determines
that the Borrower under any Serviced Mortgage Loan has failed to perform its
obligations under such Serviced Mortgage Loan in respect of environmental
matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
(g) With respect to each Serviced Mortgage Loan that requires the
related Borrower to establish and maintain one or more lock-box, cash management
or similar accounts, the applicable Master Servicer shall establish and
maintain, in accordance with the Servicing Standard, such account(s) in
accordance with the terms of the related Mortgage Loan Documents. No such
lock-box account is required to be an Eligible Account, unless the Mortgage Loan
Documents otherwise so require. The applicable Master Servicer shall apply the
funds deposited in such accounts in accordance with terms of the related
Mortgage Loan Documents, any lock-box, cash management or similar agreement and
the Servicing Standard.
SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account and
Companion Note Custodial Accounts.
(a) Each of the Master Servicers shall segregate and hold all funds
collected and received by it in connection with the Pooled Mortgage Loans for
which it is the applicable Master Servicer separate and apart from its own funds
and general assets. In connection therewith, each Master Servicer shall
establish and maintain one or more segregated accounts (collectively, a
"Collection Account"), in which the funds described below are to be deposited
and held on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes a Collection Account shall be
an Eligible Account. Each Master Servicer shall deposit or cause to be deposited
in its Collection Account, within one Business Day of receipt by it (in the case
of payments by Borrowers or other collections on the
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Serviced Pooled Mortgage Loans as to which it acts as Master Servicer) or as
otherwise required hereunder, the following payments and collections received or
made by or on behalf of such Master Servicer subsequent to the Closing Date with
respect to the Pooled Mortgage Loans as to which it is the applicable Master
Servicer and any Administered REO Properties acquired in respect thereof (other
than in respect of scheduled payments of principal and interest due and payable
on such Pooled Mortgage Loans on or before their respective Cut-off Dates (or,
in the case of a Replacement Pooled Mortgage Loan, on or before the related date
of substitution), which payments shall be delivered promptly to the related
Pooled Mortgage Loan Seller or its designee, with negotiable instruments
endorsed as necessary and appropriate without recourse):
(i) all payments (from whatever source) on account of principal of
such Serviced Pooled Mortgage Loans, including Principal Prepayments;
(ii) all payments (from whatever source) on account of interest on
such Serviced Pooled Mortgage Loans, including Default Interest and Post-ARD
Additional Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or
late payment charges received with respect to such Serviced Pooled Mortgage
Loans;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received with respect to such Serviced Pooled Mortgage Loans
and/or, insofar as such payments and/or proceeds represent amounts allocable
to reimburse Servicing Advances or pay Liquidation Expenses and/or other
servicing expenses in respect of the entire Mortgage Loan Group of which any
such Serviced Pooled Mortgage Loan is part;
(v) any amounts relating to such Serviced Pooled Mortgage Loans
and/or Administered REO Properties required to be deposited by such Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses resulting from a deductible clause in a blanket or master force
placed hazard insurance policy;
(vi) any amounts relating to an Administered REO Properties
required to be transferred from any REO Account pursuant to Section 3.16(c);
(vii) to the extent not otherwise included in another clause of
this Section 3.04(a), any payments collected in respect of Unliquidated
Advances on such Pooled Mortgage Loans or in respect of amounts previously
determined to constitute Nonrecoverable Advances; and
(viii) insofar as they do not constitute Escrow Payments or
Reserve Funds, any amounts relating to such Serviced Pooled Mortgage Loans
paid by a Borrower specifically to cover items for which a Servicing Advance
has been made or that represent a recovery of property protection expenses
from a Borrower.
In addition, the applicable Master Servicer shall deposit into its
Collection Account, promptly upon receipt thereof if such Master Servicer is
also the Non-Trust Master Servicer and otherwise within one Business Day
following receipt thereof, all remittances to the Trust under the Non-Trust
Servicing Agreement related to the Non-Trust-Serviced Pooled Mortgage Loan or
any Non-Trust-Serviced REO Property. Furthermore, the applicable Master Servicer
for any Serviced Mortgage Loan Group shall deposit into its Collection Account,
within one Business Day following receipt thereof, all payments to the Trust
made by the Serviced Non-Pooled Mortgage Loan Noteholders in respect of
Nonrecoverable Advances or expenses pursuant to the terms of the related
Mortgage Loan Group Intercreditor Agreement.
Furthermore, each Master Servicer shall deposit in its Collection
Account any amounts required to be deposited by such Master Servicer pursuant to
Section 3.06, as and when required by such section, in connection with losses
incurred with respect to Permitted Investments of funds held in such Collection
Account.
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Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into its Collection Account any amount that such
Master Servicer would be authorized to withdraw immediately from such Collection
Account in accordance with the terms of Section 3.05 and shall be entitled to
instead pay such amount directly to the Person(s) entitled thereto.
The foregoing requirements for deposit in a Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Borrowers in the nature of Escrow Payments, assumption fees, assumption
application fees, earn-out fees, extension fees, modification fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and other fees and amounts collected from Borrowers that
constitute Additional Master Servicing Compensation and/or Additional Special
Servicing Compensation, need not be deposited by either Master Servicer in its
Collection Account. Each Master Servicer shall promptly, and in any event within
one Business Day, deliver to the Special Servicer any of the foregoing items
received by it with respect to any Pooled Mortgage Loan, if and to the extent
that such items constitute Additional Special Servicing Compensation payable to
the Special Servicer. If either Master Servicer shall deposit in its Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Collection Account, any provision herein to the
contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (vii) through (viii) of the first paragraph of this Section 3.04(a)
with respect to any Serviced Pooled Mortgage Loan, the Special Servicer shall
promptly, but in no event later than one Business Day after receipt, remit such
amounts to the applicable Master Servicer for deposit into such Master
Servicer's Collection Account, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement. 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 applicable Master Servicer (in its
capacity as such), without recourse, representation or warranty, 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. Any such amounts received by the Special Servicer with respect to
an Administered REO Property shall be deposited by the Special Servicer into the
related REO Account and remitted to the applicable Master Servicer for deposit
into such Master Servicer's Collection Account pursuant to Section 3.16(c).
(b) The Certificate Administrator shall establish and maintain one or
more segregated accounts (collectively, the "Distribution Account"), to be held
on behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders. Each account that constitutes the Distribution Account shall
be an Eligible Account. The Certificate Administrator shall, as a bookkeeping
matter, establish and maintain two sub-accounts of the Distribution Account (i)
one of which sub-accounts (such sub-account, the "REMIC Sub-Account") shall be
deemed to be held in trust for the benefit of the Holders of the Regular
Interest Certificates and the Class R Certificates, and (ii) one of which
sub-accounts (such sub-account, the "Class V Sub-Account") shall be deemed to be
held in trust for the benefit of the Holders of the Class V Certificates. Not
later than 1:00 p.m. (New York City time) on each Master Servicer Remittance
Date, each Master Servicer shall deliver to the Certificate Administrator, for
deposit in the Distribution Account, an aggregate amount of immediately
available funds equal to the Master Servicer Remittance Amount with respect to
such Master Servicer for such Master Servicer Remittance Date. Immediately upon
deposit of a Master Servicer Remittance Amount into the Distribution Account,
any portion thereof that represents any Post-ARD Additional Interest related to
the ARD Mortgage Loans and/or any successor REO Mortgage Loans with respect
thereto included in the Mortgage Pool shall be deemed to have been deposited
into the Class V Sub-Account, and the remaining portion thereof shall be deemed
to have been deposited into the REMIC Sub-Account. In addition, each Master
Servicer shall, as and when required hereunder, deliver to the Certificate
Administrator for deposit in the Distribution Account any P&I Advances and
Compensating Interest Payments required to be made by such Master Servicer
hereunder. Furthermore, any amounts paid by any party hereto to indemnify the
Trust Fund pursuant to any provision hereof shall be delivered to the
Certificate Administrator for deposit in the Distribution Account. The
Certificate Administrator shall, upon receipt, deposit in the Distribution
Account any and all amounts received or, pursuant to Section 4.03, advanced by
the Trustee or the Fiscal Agent that are required by the terms of this Agreement
to be deposited therein. As and when required pursuant to Section 3.05(c), the
Certificate Administrator shall transfer Interest Reserve Amounts in respect of
the Interest Reserve Loans from the Interest Reserve Account to the Distribution
Account. Furthermore, as and when required pursuant to Section 3.05(d), the
Certificate
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Administrator shall transfer monies from the Excess Liquidation Proceeds Account
to the Distribution Account. The Certificate Administrator shall also deposit in
the Distribution Account any amounts required to be deposited by the Certificate
Administrator pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Distribution Account. If
the Certificate Administrator shall deposit in the Distribution Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Distribution Account, any provision herein to the contrary
notwithstanding.
(c) The Certificate Administrator shall establish and maintain one or
more accounts (collectively, the "Interest Reserve Account") to be held on
behalf and in the name of the Trustee in trust for the benefit of the
Certificateholders; provided that, subject to the next paragraph, the Interest
Reserve Account may be a sub-account of the Distribution Account. Each account
that constitutes the Interest Reserve Account shall be an Eligible Account. On
the Distribution Date in January (except during a leap year) and February of
each calendar year, commencing in 2005, prior to any distributions being made
with respect to the Certificates on such Distribution Date, the Certificate
Administrator shall, with respect to each Interest Reserve Loan, withdraw from
the Distribution Account and deposit in the Interest Reserve Account an amount
equal to the Interest Reserve Amount, if any, in respect of such Interest
Reserve Loan for such Distribution Date; provided that no such transfer of
monies from the Distribution Account to the Interest Reserve Account shall be
made on the Final Distribution Date. The Certificate Administrator shall also
deposit in the Interest Reserve Account from its own funds any amounts required
to be deposited by the Certificate Administrator pursuant to Section 3.06 in
connection with losses incurred with respect to Permitted Investments of funds
held in the Interest Reserve Account.
Notwithstanding that the Interest Reserve Account may be a sub-account
of the Distribution Account for reasons of administrative convenience, the
Interest Reserve Account and the Distribution Account shall, for all purposes of
this Agreement (including the obligations and responsibilities of the
Certificate Administrator hereunder), be considered to be and shall be required
to be treated as, separate and distinct accounts.
(d) If any Excess Liquidation Proceeds are received, the Certificate
Administrator shall establish and maintain one or more accounts (collectively,
the "Excess Liquidation Proceeds Account") to be held on behalf and in the name
of the Trustee in trust for the benefit of the Certificateholders. Each account
that constitutes the Excess Liquidation Proceeds Account shall be an Eligible
Account. On each Master Servicer Remittance Date, each Master Servicer shall
withdraw from its Collection Account and remit to the Certificate Administrator
for deposit in the Excess Liquidation Proceeds Account all Excess Liquidation
Proceeds received by it during the Collection Period ending on the Determination
Date immediately prior to such Master Servicer Remittance Date. The Certificate
Administrator shall also deposit in the Excess Liquidation Proceeds Account from
its own funds any amounts required to be deposited by the Certificate
Administrator pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Excess Liquidation
Proceeds Account.
(e) The applicable Master Servicer shall segregate and hold all funds
collected and received by it in connection with the Serviced Non-Pooled Pari
Passu Companion Loan separate and apart from its own funds and general assets.
In connection therewith, such Master Servicer shall establish and maintain one
or more segregated accounts (collectively, the related "Companion Note Custodial
Account"), in which the funds described below are to be deposited and held on
behalf of the related Serviced Non-Pooled Pari Passu Companion Noteholder (and
which accounts may be maintained as separately identified sub-accounts of the
applicable Collection Account, provided that for all purposes of this Agreement
(including the obligations of the applicable Master Servicer hereunder) such
accounts shall be considered to be and shall be required to be treated as
separate and distinct from the applicable Collection Account). The Companion
Note Custodial Account shall be an Eligible Account. The applicable Master
Servicer shall deposit or cause to be deposited in the Companion Note Custodial
Account, within one Business Day of receipt by it or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of such Master Servicer in respect of the related Serviced Non-Pooled
Pari Passu Companion Loan subsequent to the Closing Date:
(i) all payments (from whatever source) on account of principal of
the Serviced Non-Pooled Pari Passu Companion Loan, including Principal
Prepayments;
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(ii) all payments (from whatever source) on account of interest on
the Serviced Non-Pooled Pari Passu Companion Loan, including Default
Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the Serviced Non-Pooled Pari Passu Companion Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of, and allocable as interest (including
Default Interest) on, principal of or Prepayment Premiums or Yield
Maintenance Charges with respect to, the Serviced Non-Pooled Pari Passu
Companion Loan (or any successor REO Mortgage Loan with respect thereto);
(v) any amounts required to be deposited by the applicable Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the applicable Companion
Note Custodial Account;
(vi) any amounts required to be deposited by the applicable Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in connection
with losses on the Serviced Non-Pooled Pari Passu Companion Loan (or any
successor REO Mortgage Loan with respect thereto) resulting from a
deductible clause in a blanket or master force placed hazard insurance
policy;
(vii) any amounts required to be transferred to the applicable
Companion Note Custodial Account from the REO Account pursuant to Section
3.16(c); and
(viii) any other amounts received and applied on the related
Serviced Non-Pooled Pari Passu Companion Loan pursuant to the related
Mortgage Loan Group Intercreditor Agreement.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the applicable Companion Note Custodial Account
any amount that such Master Servicer would be authorized to withdraw immediately
from such Companion Note Custodial Account in accordance with the terms of
Section 3.05 and shall be entitled to instead pay such amount directly to the
Person(s) entitled thereto).
The foregoing requirements for deposit in the Companion Note Custodial
Account shall be exclusive. Without limiting the generality of the foregoing,
actual payments from the applicable Borrower in the nature of Escrow Payments,
assumption fees, assumption application fees, earn-out fees, extension fees,
modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from the applicable Borrower that constitute Additional Master
Servicing Compensation and/or Additional Special Servicing Compensation, need
not be deposited by the applicable Master Servicer in the applicable Companion
Note Custodial Account. The applicable Master Servicer shall promptly deliver to
the Special Servicer any of the foregoing items received by it with respect to
the Serviced Non-Pooled Pari Passu Companion Loan, if and to the extent that
such items constitute Additional Special Servicing Compensation with respect to
the Serviced Non-Pooled Pari Passu Companion Loan. If the applicable Master
Servicer shall deposit in the applicable Companion Note Custodial Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the applicable Companion Note Custodial Account, any provision
herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) of the first paragraph of this Section 3.04(e), the Special Servicer shall
promptly, but in no event later than two (2) Business Days after receipt, remit
such amounts to the applicable Master Servicer for deposit into the applicable
Companion Note Custodial Account, unless the Special Servicer determines,
consistent with the Servicing Standard, that a
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particular item should not be deposited because of a restrictive endorsement or
because of another appropriate reason that is consistent with the Servicing
Standard. 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 applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, 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 because of another appropriate
reason that is consistent with the Servicing Standard. Any such amounts received
by the Special Servicer with respect to an REO Property relating to the
applicable Mortgage Loan Group shall be deposited by the Special Servicer into
the REO Account and, insofar as such amounts are allocable as interest on,
principal of, or Prepayment Premiums or Yield Maintenance Charges with respect
to the Serviced Non-Pooled Pari Passu Companion Loan or any successor REO
Mortgage Loan with respect thereto, shall be remitted to the applicable Master
Servicer for deposit into the applicable Companion Note Custodial Account
pursuant to Section 3.16(c) (subject to the terms of the related Mortgage Loan
Group Intercreditor Agreement). Any remittances by the Special Servicer under
this paragraph may be made as part of an aggregate remittance under this
paragraph and/or the final paragraph of Section 3.04(a).
To the extent of the applicable Serviced Non-Pooled Pari Passu
Companion Noteholder's interest therein, the Companion Note Custodial Account
shall be treated as an "outside reserve fund" within the meaning of the REMIC
Provisions, beneficially owned by the related Serviced Non-Pooled Pari Passu
Companion Noteholder, who shall be liable for any tax on its share of any
reinvestment income thereon, and who shall be deemed to receive any related
reimbursements from the Trust Fund.
(f) Funds in a Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account and/or a
Companion Note Custodial Account may be invested in Permitted Investments in
accordance with the provisions of Section 3.06. Each Master Servicer shall give
notice to the other parties hereto of the location of its Collection Account as
of the Closing Date and of the new location of its Collection Account prior to
any change thereof. With respect to each Serviced Mortgage Loan Group, the
applicable Master Servicer shall give notice to the other parties hereto and to
each related Serviced Non-Pooled Pari Passu Companion Noteholder related to the
Serviced Mortgage Loan Group of the location of the related Companion Note
Custodial Account maintained by it as of the Closing Date and of the new
location of such account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Collection Accounts,
the Distribution Account, the Interest Reserve Account,
the Excess Liquidation Proceeds Account and the Companion
Note Custodial Account.
(a) Subsection (I). Each Master Servicer may, from time to time, make
withdrawals from its Collection 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 Certificate Administrator for deposit in the
Distribution Account (A) the Master Servicer Remittance Amount with respect
to such Master Servicer for each Master Servicer Remittance Date and (B) any
amounts that may be applied by such Master Servicer to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee or itself, as
applicable, in that order, for xxxxxxxxxxxx X&X Advances made by such Person
(in each case, with its own funds) with respect to those Pooled Mortgage
Loans as to which such Master Servicer is the applicable Master Servicer
and/or any successor REO Pooled Mortgage Loans in respect thereof, such
Master Servicer's, the Trustee's and the Fiscal Agent's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with respect
to any P&I Advance (other than a Nonrecoverable P&I Advance, which is
reimbursable pursuant to clause (vi) below) being limited to (subject to the
operation of subsection (II)(iii) of this Section 3.05(a)) amounts on
deposit in such Collection Account that represent Late Collections of
interest and principal Received by the Trust in respect of the particular
Pooled Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I
Advance was made (net of related Master Servicing Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees with
respect to those Pooled Mortgage Loans as to which it is the applicable
Master Servicer and/or any successor REO Pooled Mortgage Loans in respect
thereof, such Master Servicer's right to payment pursuant to this clause
(iii) with respect to any
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such Pooled Mortgage Loan or REO Pooled Mortgage Loan being limited to
amounts on deposit in such Collection Account that are allocable as interest
on such Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may
be;
(iv) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Special Servicing Fees, Workout Fees
and Liquidation Fees to which it is entitled in respect of each Specially
Serviced Pooled Mortgage Loan, Corrected Pooled Mortgage Loan and/or REO
Pooled Mortgage Loan pursuant to, and from the sources contemplated by,
Section 3.11(c), but only if and to the extent that such Special Servicing
Fees, Workout Fees and Liquidation Fees relate to Pooled Mortgage Loans
and/or related REO Properties as to which such Master Servicer is the
applicable Master Servicer (and in no event shall any such payment be made
by the applicable Master Servicer in respect of the Non-Trust-Serviced
Pooled Mortgage Loan);
(v) to reimburse the Fiscal Agent, the Trustee, the Special
Servicer or itself, as applicable, in that order, for any unreimbursed
Servicing Advances made thereby (in each case, with its own funds) with
respect to those Mortgage Loans and related REO Properties as to which such
Master Servicer is the applicable Master Servicer, such Master Servicer's,
the Special Servicer's, the Trustee's and the Fiscal Agent's, as the case
may be, respective rights to reimbursement pursuant to this clause (v) with
respect to any Servicing Advance (other than a Nonrecoverable Servicing
Advance, which is reimbursable pursuant to clause (vi) below) being limited
to (subject to the operation of subsection (II)(iii) of this Section
3.05(a)) amounts on deposit in such Collection Account that represent (A)
payments made by the related Borrower that are allocable to cover the item
in respect of which such Servicing Advance was made, and/or (B) Insurance
Proceeds, Condemnation Proceeds, Liquidation Proceeds and, if applicable,
REO Revenues Received by the Trust in respect of the particular Pooled
Mortgage Loan or related REO Property as to which such Servicing Advance was
made;
(vi) to reimburse the Fiscal Agent, the Trustee, the Special
Servicer or itself, as applicable, in that order, out of such general
collections (subject to the operation of subsection (II)(iv) of this Section
3.05(a) below) on the Mortgage Loans and any REO Properties as are then on
deposit in such Collection Account, for any unreimbursed Nonrecoverable
Advances made thereby with respect to any of the Mortgage Loans and/or
related REO Properties as to which such Master Servicer is the applicable
Master Servicer;
(vii) to pay the Fiscal Agent, the Trustee, the Special Servicer
or itself, as applicable, in that order, any unpaid Advance Interest accrued
on Advances made by such Person with respect to Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer, such payment to be made, as and to the extent contemplated by
Section 3.31, out of amounts on deposit in such Collection Account that
represent Default Charges Received by the Trust on the Mortgage Loans or REO
Mortgage Loans as to which the subject Advance was made;
(viii) to the extent that such Master Servicer has reimbursed or
is reimbursing the Fiscal Agent, the Trustee, the Special Servicer or
itself, as applicable, for any unreimbursed Advance with respect to any
Mortgage Loan or REO Property as to which such Master Servicer is the
applicable Master Servicer (regardless of whether such reimbursement is
pursuant to clause (ii), (v) or (vi) above, pursuant to Section 3.03(c) or
Section 3.03(d) or pursuant to subsection (II) of this Section 3.05(a)), and
insofar as payment has not already been made out of related Default Charges,
and the related Default Charges then on deposit in such Collection Account
and available therefor are not sufficient to make such payment, pursuant to
clause (vii) above, to pay the Fiscal Agent, the Trustee, the Special
Servicer or itself, as applicable, in that order, first out of amounts on
deposit in such Collection Account that represent the remaining Liquidation
Proceeds, Insurance Proceeds and/or Condemnation Proceeds, if any, from the
Pooled Mortgage Loan or REO Property to which the Advance relates, then out
of such general collections (subject to the operation of subsection (II) of
this Section 3.05(a) below) on the Mortgage Loans and any REO Properties as
are then on deposit in such Collection Account, any related Advance Interest
accrued and payable on the portion of such Advance so reimbursed or being
reimbursed;
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(ix) to pay (A) any outstanding expenses that were incurred by the
Special Servicer in connection with its inspecting, pursuant to Section
3.12(a), any Administered REO Property or any Mortgaged Property securing a
Specially Serviced Pooled Mortgage Loan as to which such Master Servicer is
the applicable Master Servicer or (B) any other outstanding expenses
incurred on behalf of the Trust with respect to any Mortgage Loan or related
REO Property as to which such Master Servicer is the applicable Master
Servicer (other than Advance Interest that is paid pursuant to clause (vii)
above, and other than Special Servicing Fees, Workout Fees and Liquidation
Fees, which are covered by clause (iv) above) that will likely otherwise
become Additional Trust Fund Expenses, such payment to be made from amounts
on deposit in such Collection Account that represent Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds from the related Mortgage Loan
or REO Property;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in such Collection
Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with respect
to any Serviced Pooled Mortgage Loan or related Administered REO Property as
to which such Master Servicer is the applicable Master Servicer, such
payments to be made, first, out of amounts on deposit in such Collection
Account that represent Insurance Proceeds, Condemnation Proceeds or
Liquidation Proceeds and, if applicable, REO Revenues received with respect
to such Pooled Mortgage Loan or REO Property, as the case may be, and then,
out of such general collections on the Pooled Mortgage Loans and any REO
Properties as are then on deposit in such Collection Account;
(xii) to pay, subject to and in accordance with Section 3.11(i),
out of such general collections on the Pooled Mortgage Loans and any related
REO Properties as are then on deposit in such Collection Account, servicing
expenses related to the Pooled Mortgage Loans and related REO Properties as
to which such Master Servicer is the applicable Master Servicer, which
expenses would, if advanced, constitute Nonrecoverable Servicing Advances;
(xiii) to pay, first out of amounts on deposit in such Collection
Account that represent related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then, out of such general
collections on the Pooled Mortgage Loans and any related REO Properties as
are then on deposit in such Collection Account, costs and expenses incurred
by the Trust pursuant to Section 3.09(c) with respect to any Serviced Pooled
Mortgage Loan or Administered REO Property as to which such Master Servicer
is the applicable Master Servicer (other than the costs of environmental
testing, which are to be covered by, and reimbursable as, a Servicing
Advance);
(xiv) to pay itself, the Special Servicer, the Depositor, the
Certificate Administrator, the Tax Administrator, the Trustee, the Fiscal
Agent, or any of their respective directors, officers, members, managers,
employees and agents, as the case may be, first out of amounts on deposit in
such Collection Account that represent related Liquidation Proceeds,
Insurance Proceeds and/or Condemnation Proceeds, if any, and then, out of
such general collections on the Pooled Mortgage Loans and any REO Properties
as are then on deposit in such Collection Account, any amounts payable to
any such Person pursuant to Section 6.03, Section 7.01(b), Section 8.05(b)
or Section 8.13, as applicable, but only if and to the extent that such
amounts relate to Pooled Mortgage Loans and/or REO Properties as to which
such Master Servicer is the applicable Master Servicer;
(xv) to pay, first out of amounts on deposit in such Collection
Account that represent related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds, if any, and then, out of such general
collections on the Pooled Mortgage Loans and any REO Properties as are then
on deposit in such Collection Account, (A) any reasonable out-of-pocket cost
or expense (including the reasonable fees of tax accountants and attorneys)
incurred by the Trustee pursuant to Section 3.17(a)(iii) in connection with
providing advice to the Special Servicer with respect to any REO Property as
to which such Master Servicer is the applicable Master
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Servicer, and (B) to the extent not otherwise advanced by such Master
Servicer, any fees and/or expenses payable or reimbursable, as the case may
be, in accordance with Section 3.18(c), to the applicable Master Servicer or
the Trustee or an Independent third party for confirming, in accordance with
such Section 3.18(c), a Fair Value determination made with respect to any
Specially Designated Defaulted Pooled Mortgage Loan as to which such Master
Servicer is the applicable Master Servicer;
(xvi) to pay itself, the Special Servicer, the Certificate
Administrator, the Trustee, the Fiscal Agent or the Depositor, as the case
may be, any amount related to the Pooled Mortgage Loans and/or related REO
Properties as to which such Master Servicer is the applicable Master
Servicer, that is specifically required to be paid to such Person at the
expense of the Trust Fund under any provision of this Agreement and to which
reference is not made in any other clause of this Section 3.05(a), it being
acknowledged that this clause (xvi) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xvii) to pay itself, the Special Servicer, any Pooled Mortgage
Loan Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to any Pooled Mortgage Loan as to
which such Master Servicer is the applicable Master Servicer and that was
previously purchased or otherwise removed from the Trust Fund by such Person
pursuant to or as contemplated by this Agreement, all amounts received on
such Pooled Mortgage Loan subsequent to the date of purchase or other
removal;
(xviii) to pay to the applicable Pooled Mortgage Loan Seller any
amounts on deposit in such Collection Account that represent Monthly
Payments due on the respective Pooled Mortgage Loans on or before the
Cut-off Date or, in the case of a Replacement Pooled Mortgage Loan, on or
before the date on which such Replacement Pooled Mortgage Loan was added to
the Trust Fund;
(xix) in connection with the Non-Trust-Serviced Pooled Mortgage
Loan, to pay, out of such general collections on the Pooled Mortgage Loans
and REO Properties as are then on deposit in such Collection Account, to the
Non-Trust Master Servicer, the Non-Trust Special Servicer and/or the
holder(s) of the related Non-Pooled Pari Passu Companion Loan(s), any amount
reimbursable to such party by the holder of such Non-Trust-Serviced Pooled
Mortgage Loan pursuant to the terms of the related Mortgage Loan Group
Intercreditor Agreement;
(xx) to transfer any Excess Liquidation Proceeds on deposit in
such Collection Account to the Excess Liquidation Proceeds Account in
accordance with Section 3.04(d);
(xxi) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Collection Account in error; and
(xxii) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
provided, however, that if any expense, cost, reimbursement or other amount
otherwise permitted to be withdrawn from a Collection Account pursuant to clause
(vi) (relating to Nonrecoverable Advances), clause (ix) (relating to certain
expenses), clause (xiii) (relating to certain environmental costs) or clause
(xiv) (relating to certain indemnification and similar expenses) relates to a
Mortgage Loan in the Serviced Mortgage Loan Group, then such payment shall be
made from collections with respect to such Serviced Mortgage Loan Group on
deposit in the relevant Collection Account and any related Companion Note
Custodial Account(s) (withdrawals from those accounts to be made pro rata
according to the related Mortgage Loan Group Intercreditor Agreement and based
on the respective outstanding principal balances of the related Pooled Mortgage
Loan and the Serviced Non-Pooled Pari Passu Companion Loan), prior to payment
from funds in such Collection Account that are unrelated to such Serviced
Mortgage Loan Group.
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In addition, but subject to the succeeding paragraphs of this Section
3.05(a), if at any time a Master Servicer is entitled to make a payment,
reimbursement or remittance from its Collection Account, the payment,
reimbursement or remittance can be made from any funds on deposit in such
Collection Account (including pursuant to clause (vi) of the preceding
paragraph) and the amounts on deposit in such Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) are insufficient to satisfy such payment, reimbursement or remittance and
the amount on deposit in the other Master Servicer's Collection Account (after
withdrawing any portion of such amounts deposited in such Collection Account in
error) is sufficient to make such payment, reimbursement or remittance, then
such other Master Servicer shall withdraw funds from its Collection Account and
make such payment, reimbursement or remittance within three (3) Business Days
following a written request therefor from the first Master Servicer, which
request is accompanied by an Officer's Certificate (1) either (x) setting forth
that the requesting Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Administrator or another particular Person, as
applicable, is entitled to such payment, reimbursement or remittance (and
setting forth the nature and amount of such payment, reimbursement or remittance
and the party entitled thereto) or (y) forwarding a copy of any Officer's
Certificate or other information provided by the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Administrator or another particular Person, as
the case may be, that sets forth that such Person is entitled to such payment,
reimbursement or remittance (and the nature and amount of such payment,
reimbursement or remittance and the party entitled thereto) and (2) setting
forth that the requesting Master Servicer does not then have on deposit in its
Collection Account funds sufficient for such reimbursement.
If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xx) of
the second preceding paragraph above, then the corresponding withdrawals from
such Collection Account shall be made in the following priority and subject to
the following rules: (x) if the payment, reimbursement or remittance is to be
made from a specific source of funds, then such payment, reimbursement or
remittance shall be made from that specific source of funds on a pro rata basis
with any and all other payments, reimbursements and remittances to be made from
such specific source of funds; and (y) if the payment, reimbursement or
remittance can be made from any funds on deposit in such Collection Account,
then (following any withdrawals made from such Collection Account in accordance
with the immediately preceding clause (x) of this sentence) such payment,
reimbursement or remittance shall be made from the general funds remaining on
deposit in such Collection Account on a pro rata basis with any and all other
payments, reimbursements or remittances to be made from such general funds;
provided that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of a Collection Account pursuant to any of
clauses (ii), (v) and (vi) of the first paragraph of this Section 3.05(a)(I),
and any payments of interest thereon out of a Collection Account pursuant to
either of clauses (vii) and (viii) of the first paragraph of this Section
3.05(a)(I), shall be made (to the extent of their respective entitlements to
such reimbursements and/or payments): first, to the Fiscal Agent; second, to the
Trustee; and third, pro rata, to the applicable Master Servicer and the Special
Servicer.
Each Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xx) of the first paragraph of this Section 3.05(a)(I).
Each Master Servicer shall pay to the Special Servicer from such Master
Servicer's Collection Account on each Master Servicer Remittance Date amounts
permitted to be paid to the Special Servicer therefrom based upon an Officer's
Certificate received from the Special Servicer on the first Business Day
following the immediately preceding Determination Date, describing the item and
amount to which the Special Servicer is entitled. Each 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 thereby for withdrawal from a Collection Account.
Subsection (II). The provisions of this subsection (II) of this Section
3.05(a) shall apply notwithstanding any contrary provision of subsection (I) of
this Section 3.05(a):
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(i) Identification of Workout-Delayed Reimbursement Amounts: If
any Advance made with respect to any Mortgage Loan on or before the date on
which such Mortgage Loan becomes (or, but for the making of three monthly
payments under its modified terms, would then constitute) a Corrected
Mortgage Loan, together with (to the extent theretofore accrued and unpaid)
Advance Interest thereon, is not pursuant to the operation of the provisions
of Section 3.05(a)(I) reimbursed to the Person who made such Advance on or
before the date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan (or, but for the making of three monthly payments under its
modified terms, would constitute a Corrected Mortgage Loan), such Advance,
together with such Advance Interest, shall constitute a "Workout-Delayed
Reimbursement Amount" to the extent that such amount has not been determined
to constitute a Nonrecoverable Advance. All references herein to
"Workout-Delayed Reimbursement Amount" shall be construed always to mean the
related Advance and (to the extent theretofore accrued and unpaid) any
Advance Interest thereon, together with (to the extent it remains unpaid)
any further Advance Interest that accrues on the unreimbursed portion of
such Advance from time to time in accordance with the other provisions of
this Agreement. That any amount constitutes all or a portion of any
Workout-Delayed Reimbursement Amount shall not in any manner limit the right
of any Person hereunder to determine that such amount instead constitutes a
Nonrecoverable Advance.
(ii) General Relationship of Provisions. Subsection (iii) below
(subject to the terms, conditions and limitations thereof) sets forth the
terms of and conditions to the right of a Person to be reimbursed for any
Workout-Delayed Reimbursement Amount to the extent that such Person is not
otherwise entitled to reimbursement and payment of such Workout-Delayed
Reimbursement Amount pursuant to the operation of Section 3.05(a)(I) above
(construed without regard to the reference therein to this subsection except
that it is nonetheless hereby acknowledged that, for purposes of "Late
Collections" in subsection 3.05(a)(I), funds received on the related
Mortgage Loan shall be applied in accordance with the terms of the
applicable modification even though such application may result in an
Advance continuing to be outstanding when the Borrower is current in its
payments under the terms of the Mortgage Loan as modified). Subsection (iv)
below (subject to the terms, conditions and limitations thereof) authorizes
the Master Servicer, under certain circumstances, to abstain from
reimbursing itself (or, if applicable, the Trustee or the Fiscal Agent to
abstain from obtaining reimbursement) for Nonrecoverable Advances at its
sole option. Upon any determination that all or any portion of a
Workout-Delayed Reimbursement Amount constitutes a Nonrecoverable Advance,
then the reimbursement or payment of such amount (and any further Advance
Interest that may accrue thereon) shall cease to be subject to the operation
of subsection (iii) below, such amount (and further Advance Interest) shall
be as fully payable and reimbursable to the relevant Person as would any
other Nonrecoverable Advance (and Advance Interest thereon) and, as a
Nonrecoverable Advance, such amount may become the subject of a Master
Servicer's (or, if applicable, the Trustee's or the Fiscal Agent's) exercise
of its sole option authorized by subsection (iv) below.
(iii) Reimbursements of Workout-Delayed Reimbursement Amounts: The
applicable Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, as applicable, shall be entitled to reimbursement and payment (and,
notwithstanding any contrary provision of subsection (I) above, shall be
entitled to withdraw and pay to itself the amount of such reimbursement and
payment) for all Workout-Delayed Reimbursement Amounts in each Collection
Period (and it is again hereby acknowledged that, for purposes of "Late
Collections" in subsection 3.05(a)(I), funds received on the related
Mortgage Loan shall be applied in accordance with the terms of the
applicable modification even though such application may result in an
Advance continuing to be outstanding when the Borrower is current in its
payments under the terms of the Mortgage Loan as modified); provided,
however, that the aggregate amount (for all such Persons collectively) of
such reimbursements and payments from amounts advanced or collected on the
Mortgage Pool in such Collection Period shall not exceed (and the
reimbursement and payment shall be made from) the aggregate principal
portions of P&I Advances and principal collections and recoveries on the
Mortgage Pool for such Collection Period contemplated by clauses (i) through
(v) of the definition of "Unadjusted Principal Distribution Amount", net of
the aggregate deduction amounts for (x) Special Servicing Fees, Liquidation
Fees and/or Advance Interest with respect to Pooled Mortgage Loans or REO
Properties that were paid hereunder from a source other than related Default
Charges during the related Collection Period, as described by clause (II)(A)
of the definition of "Principal Distribution
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Amount", and (y) Nonrecoverable Advances (and accrued and unpaid Advance
Interest thereon) that were reimbursed or paid during the related Collection
Period from principal collections on the Mortgage Pool, as described by
clause (II)(C) of the definition of "Principal Distribution Amount" and
pursuant to subsection (iv) of this Section 3.05(a)(II). As and to the
extent provided in clause (II)(B) of the definition thereof, the Principal
Distribution Amount for the Distribution Date related to such Collection
Period shall be reduced to the extent that such payment or reimbursement of
a Workout-Delayed Reimbursement Amount is made from aggregate principal
collections pursuant to the preceding sentence.
Any collections (as applied under Section 1.03) received on or in
respect of the Pooled Mortgage Loans during a Collection Period that, in
each case, represents a delinquent amount as to which an Advance had been
made, which Advance was previously reimbursed during the Collection Period
for a prior Distribution Date as part of a Workout-Delayed Reimbursement
Amount, shall be added to and constitute a part of the Principal
Distribution Amount for the related Distribution Date (pursuant to clause
(I)(B) of the definition of "Principal Distribution Amount") to the extent
of all Workout-Delayed Reimbursement Amounts on or in respect of such
respective Mortgage Loan that were reimbursed from collections of principal
on the Mortgage Pool in all prior Collection Periods pursuant to the
preceding paragraph.
The Certificate Administrator (and, with respect to Advances made
by a Master Servicer, the Trustee and the Fiscal Agent) shall be entitled to
rely conclusively upon any direction or notice received from either Master
Servicer in connection with any determination made by such Master Servicer
pursuant to the foregoing provisions of this Section 3.05(a)(II)(iii) and
shall not be obligated to independently verify, monitor or oversee any such
determination.
(iv) Sole Option to Abstain from Reimbursements of Certain
Nonrecoverable Advances. To the extent that Section 3.05(a)(I) (as construed
without regard to this subsection (iv)) otherwise entitles a Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to
reimbursement for any Nonrecoverable Advance (or payment of Advance Interest
thereon from a source other than Default Charges on the related Mortgage
Loan) during any Collection Period, then, notwithstanding any contrary
provision of subsection (I) above, (a) to the extent that one or more such
reimbursements and payments of Nonrecoverable Advances (and such Advance
Interest thereon) are made, they shall be made, first, from the aggregate
principal portions of P&I Advances and principal collections and recoveries
on the Mortgage Pool for such Collection Period contemplated by clauses (i)
through (v) of the definition of "Unadjusted Principal Distribution Amount",
net of the aggregate deduction amounts for Special Servicing Fees,
Liquidation Fees and/or Advance Interest with respect to Pooled Mortgage
Loans or REO Properties that were paid hereunder from a source other than
related Default Charges during the related Collection Period, as described
by clause (II)(A) of the definition of "Principal Distribution Amount", and
then from other amounts advanced or collected on the Mortgage Pool for such
Collection Period; provided that, except in extraordinary circumstances, the
Master Servicer, Special Servicer, Trustee or Fiscal Agent, as applicable,
shall provide Xxxxx'x and S&P with at least 15 days notice before any
reimbursement shall be made of a Nonrecoverable Advance (or payment of
Advance Interest thereon from a source other than Default Charges on the
related Mortgage Loan) from such other amounts advanced or collected on the
Mortgage Pool for such Collection Period, and (b) if and to the extent that
the amount of such a Nonrecoverable Advance (and Advance Interest thereon),
together with all Nonrecoverable Advances (and Advance Interest thereon)
theretofore reimbursed during such Collection Period, would exceed the
aggregate principal portions of P&I Advances and principal collections and
recoveries on the Mortgage Pool for such Collection Period contemplated by
clauses (i) through (v) of the definition of "Unadjusted Principal
Distribution Amount", net of the aggregate deduction amounts for such
Special Servicing Fees, Liquidation Fees and/or Advance Interest described
by clause (II)(A) of the definition of "Principal Distribution Amount", such
Master Servicer, the Special Servicer, the Trustee and/or the Fiscal Agent,
as applicable, if it made the relevant Advance) is hereby authorized (but
shall not be construed to have any obligation whatsoever), if it elects at
its sole option, to abstain from reimbursing itself or obtaining
reimbursement (notwithstanding that it is entitled to such reimbursement)
during that Collection Period for all or a portion of such Nonrecoverable
Advance (and Advance Interest thereon), provided that the aggregate amount
that is the subject of the exercise of such option with respect to all
Nonrecoverable Advances (and Advance Interest
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thereon) with respect to all Mortgage Loans for any particular Collection
Period is less than or equal to such excess described above in this clause
(b). If a Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) makes such an election at its sole option to defer reimbursement
with respect to all or a portion of a Nonrecoverable Advance (and Advance
Interest thereon), then such Nonrecoverable Advance (and Advance Interest
thereon) or portion thereof shall continue to be fully reimbursable in any
subsequent Collection Period. In connection with a potential election by a
Master Servicer (or the Trustee or the Fiscal Agent, as applicable) to
abstain from the reimbursement of a particular Nonrecoverable Advance or
portion thereof during the Collection Period for any Distribution Date, each
Master Servicer (or the Trustee or the Fiscal Agent, as applicable) shall
further be authorized to wait for principal collections to be received
before making its determination of whether to abstain from the reimbursement
of a particular Nonrecoverable Advance or portion thereof.
Any collections (as applied under Section 1.03) received on the
Pooled Mortgage Loans during a Collection Period that, in each case,
represents a recovery of an amount determined in a prior Collection Period
to have been a Nonrecoverable Advance shall be added to and constitute a
part of the Principal Distribution Amount for the related Distribution Date
(pursuant to clause (I)(C) of the definition of "Principal Distribution
Amount") to the extent of all Nonrecoverable Advances on such respective
Mortgage Loan that were reimbursed from collections of principal on the
Mortgage Pool in all prior Collection Periods pursuant to the preceding
paragraph.
None of the Master Servicer, the Trustee or the Fiscal Agent shall
have any liability whatsoever for making an election, or refraining from
making an election, that is authorized under this subsection (II)(iv). The
foregoing shall not, however, be construed to limit any liability that may
otherwise be imposed on such Person for any failure by such Person to comply
with the conditions to making such an election under this subsection
(II)(iv) or to comply with the terms of this subsection (II)(iv) and the
other provisions of this Agreement that apply once such an election, if any,
has been made.
Any election by a Master Servicer (or the Trustee or the Fiscal
Agent, as applicable) to abstain from reimbursing itself for any
Nonrecoverable Advance (and Advance Interest thereon) or portion thereof
with respect to any Collection Period shall not be construed to impose on
such Master Servicer (or the Trustee or the Fiscal Agent, as applicable) any
obligation to make such an election (or any entitlement in favor of any
Certificateholder or any other Person to such an election) with respect to
any subsequent Collection Period or to constitute a waiver or limitation on
the right of such Master Servicer (or the Trustee or the Fiscal Agent, as
applicable) to otherwise be reimbursed for such Nonrecoverable Advance (and
Advance Interest thereon). Any such election by one of the Master Servicers,
the Trustee or the Fiscal Agent shall not be construed to impose any duty on
any other such party to make such an election (or any entitlement in favor
of any Certificateholder or any other Person to such an election). Any such
election by any such party to abstain from reimbursing itself or obtaining
reimbursement for any Nonrecoverable Advance or portion thereof with respect
to any one or more Collection Periods shall not limit the accrual of Advance
Interest on such Nonrecoverable Advance for the period prior to the actual
reimbursement of such Nonrecoverable Advance. None of the Master Servicers,
the Trustee, the Fiscal Agent or the other parties to this Agreement shall
have any liability to one another or to any of the Certificateholders or any
of the Non-Pooled Noteholders for any such election that such party makes as
contemplated by this subsection or for any losses, damages or other adverse
economic or other effects that may arise from such an election. The
foregoing statements in this paragraph shall not limit the generality of the
statements made in the immediately preceding paragraph.
The Certificate Administrator (and, with respect to Advances made
by a Master Servicer, the Trustee and the Fiscal Agent) shall be entitled to
rely conclusively upon any direction or notice received from either Master
Servicer in connection with any determination made by such Master Servicer
pursuant to the foregoing provisions of this Section 3.05(a)(II)(iv) and
shall not be obligated to independently verify, monitor or oversee any such
determination.
(v) Deferral is Not Subordination. No determination by a Master
Servicer (or the Trustee or the Fiscal Agent, as applicable) to exercise its
sole option to defer the reimbursement of Advances and/or
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Advance Interest under subsection (iv) shall be construed as an agreement by
such Master Servicer (or the Trustee or the Fiscal Agent, as applicable) to
subordinate (in respect of realizing losses), to any Class of Certificates,
such party's right to such reimbursement during such period of deferral.
(b) The Certificate Administrator shall, from time to time, make
withdrawals from the Distribution Account for each of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01;
(ii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Loans to the Interest Reserve Account as and when required
by Section 3.04(c);
(iii) to pay itself, the Tax Administrator, either Master
Servicer, the Special Servicer, the Depositor, the Trustee, the Fiscal Agent
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, Section 7.01(b), Section 8.05 or Section 8.13, as
applicable, if and to the extent such amounts are not payable out of a
Collection Account pursuant to Section 3.05;
(iv) to pay any and all federal, state and local taxes imposed on
any REMIC Pool or on the assets or transactions of any REMIC Pool, together
with all incidental costs and expenses, and any and all expenses relating to
tax audits, if and to the extent that either (A) none of the parties hereto
are liable therefor pursuant to Section 10.01(b) and/or Section 10.01(f) or
(B) any such Person that may be so liable has failed to timely make the
required payment;
(v) to pay for the cost of the Opinions of Counsel as contemplated
by Section 11.01(a) or Section 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;
(vi) to pay itself Net Investment Earnings earned on funds in the
Distribution Account for each Collection Period;
(vii) to pay for the cost of recording this Agreement pursuant to
Section 11.02(a);
(viii) to pay to any party hereto any amounts deposited or
remitted by such Person for deposit into the Distribution Account in error;
and
(ix) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2005), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Certificate Administrator shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts in respect of
the Interest Reserve Loans then on deposit in the Interest Reserve Account. In
addition, the Certificate Administrator shall, from time to time, make
withdrawals from the Interest Reserve Account to pay itself interest or other
income earned on deposits in 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 the Interest Reserve Account for each Collection Period).
(d) On the Business Day prior to each Distribution Date, the
Certificate Administrator shall withdraw from the Excess Liquidation Proceeds
Account and deposit in the Distribution Account, for distribution on such
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Distribution Date, an amount equal to the lesser of (i) the entire amount of
Excess Liquidation Proceeds, if any, then on deposit in the Excess Liquidation
Proceeds Account and (ii) the excess, if any, of the aggregate amount
distributable on such Distribution Date pursuant to Section 4.01(a), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Business Day prior to the Final
Distribution Date, the Certificate Administrator shall withdraw from the Excess
Liquidation Proceeds Account and deposit in the Distribution Account, for
distribution on such Distribution Date, any and all Excess Liquidation Proceeds
then on deposit in the Excess Liquidation Proceeds Account. In addition, the
Certificate Administrator shall, from time to time, make withdrawals from the
Excess Liquidation Proceeds Account to pay itself interest or other income
earned on deposits in the Excess Liquidation Proceeds Account, in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the Excess Liquidation Proceeds Account for each Collection
Period).
(e) The Certificate Administrator, the Trustee, the Fiscal Agent, the
Depositor, each Master Servicer and the Special Servicer, as applicable, shall
in all cases have a right prior to the Certificateholders to any particular
funds on deposit in the Collection Accounts and the Distribution Account from
time to time for the reimbursement or payment of compensation, Advances (with
interest thereon at the Reimbursement Rate) and their respective expenses
hereunder, but only if and to the extent such compensation, Advances (with such
interest) and expenses are to be reimbursed or paid from such particular funds
on deposit in such Collection Account or the Distribution Account pursuant to
the express terms of this Agreement.
(f) The applicable Master Servicer may, from time to time, make
withdrawals from the Companion Note Custodial 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 applicable Serviced Non-Pooled Pari Passu
Companion Noteholder the amounts to which the applicable Serviced Non-Pooled
Pari Passu Companion Noteholder is entitled in accordance with the last
paragraph of this Section 3.05(f), as and when required by such paragraph;
(ii) to pay to itself earned and unpaid Master Servicing Fees in
respect of the related Serviced Non-Pooled Pari Passu Companion Loan or any
successor REO Mortgage Loan with respect thereto;
(iii) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Serviced Non-Pooled Pari Passu
Companion Loan or any successor REO Mortgage Loan with respect thereto;
(iv) to pay the Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees to
which it is entitled with respect to the related Serviced Non-Pooled Pari
Passu Companion Loan or any successor REO Mortgage Loan with respect thereto
pursuant to, and from the sources contemplated by, the second and third
paragraphs of Section 3.11(c);
(v) to pay the Special Servicer (or, if applicable, any
predecessor thereto) any earned and unpaid Workout Fees and Liquidation Fees
to which it is entitled with respect to the related Serviced Non-Pooled Pari
Passu Companion Loan or any successor REO Mortgage Loan with respect
thereto, but which is payable out of amounts collected on or with respect to
the related Serviced Non-Pooled Pari Passu Companion Loan or any successor
REO Mortgage Loan with respect thereto, pursuant to the second and third
paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, for any unreimbursed Servicing Advances made
thereby (in each case, with its own funds) with respect to the related
Serviced Mortgage Loan Group or any related REO Property (but only to the
extent that either amounts are on deposit in the Collection Account and such
Companion Note Custodial Account collectively that represent
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collections of amounts that were the subject of such Servicing Advances or
such Servicing Advances have been determined to constitute Nonrecoverable
Advances);
(vii) to pay itself, the Special Servicer, the Trustee or the
Fiscal Agent, as applicable, any Advance Interest then due and owing to such
Person with respect to any Servicing Advance made by such Person (out of its
own funds) with respect to the related Serviced Mortgage Loan Group or any
successor REO Mortgage Loan with respect thereto (but only to the extent
that the related Advance has been or is being reimbursed and the related
Default Charges available therefor are not sufficient to make such payment
of Advance Interest);
(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Special Servicer any items of Additional
Special Servicing Compensation, in each case on deposit in such Companion
Note Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with respect
to the related Serviced Mortgage Loan Group or any related REO Property (but
only to the extent that amounts specifically allocable to such purpose have
not been deposited in the applicable Collection Account;
(x) to pay, in accordance with Section 3.11(i), certain servicing
expenses with respect to the related Serviced Mortgage Loan Group or any
related REO Property, which expenses would, if advanced, constitute
Nonrecoverable Servicing Advances (but only to the extent that amounts
specifically allocable to such purpose have not been deposited in the
applicable Collection Account);
(xi) to pay any costs and expenses incurred by the Trust pursuant
to Section 3.09(c) (other than the costs of environmental testing, which are
to be covered by, and reimbursable as, a Servicing Advance) with respect to
the related Serviced Mortgage Loan Group or any related REO Property (but
only to the extent that amounts specifically allocable to such purpose have
not been deposited in the applicable Collection Account);
(xii) to pay itself, the Special Servicer, the Depositor, the
Trustee, the Fiscal Agent, 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, Section 7.01(b),
Section 8.05(b), or Section 8.13, as applicable, in connection with the
related Serviced Mortgage Loan Group or any related REO Property (but only
to the extent that amounts specifically allocable to such purpose have not
been deposited in the applicable Collection Account);
(xiii) to pay to itself, the Special Servicer, the Trustee, the
Fiscal Agent or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the related Serviced
Non-Pooled Pari Passu Companion Loan Noteholder under any provision of this
Agreement or the related Mortgage Loan Group Intercreditor Agreement to
which reference is not made in any other clause of this Section 3.05(f), it
being acknowledged that this clause (xiii) shall not be construed to modify
any limitation otherwise set forth in this Agreement on the time at which
any Person is entitled to payment or reimbursement of any amount or the
funds from which any such payment or reimbursement is permitted to be made;
(xiv) to withdraw any amount and pay to the Person entitled
thereto any amount deposited in such Companion Note Custodial Account in
error; and
(xv) to clear and terminate such Companion Note Custodial Account
at the termination of this Agreement pursuant to Section 9.01 or at such
time as the related Serviced Mortgage Loan Group or any related REO Property
is no longer serviced hereunder;
provided, however, that in connection with any expense, cost, reimbursement or
other amount otherwise permitted to be withdrawn from a Companion Note Custodial
Account pursuant to clause (vi) (relating to Servicing Advances), clause (vii)
(relating to Advance Interest on Servicing Advances), clause (ix) (relating to
Liquidation Expenses), clause (x)
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(relating to Nonrecoverable Servicing Advances), clause (xi) (relating to
certain environmental expenses) or clause (xii) (relating to certain
indemnification and similar expenses), such payment shall be made from
collections with respect to the related Serviced Mortgage Loan Group on deposit
in the relevant Collection Account and all related Companion Note Custodial
Account(s) (withdrawals from those accounts to be made pro rata according to the
related Mortgage Loan Group Intercreditor Agreement and based on the respective
outstanding principal balances of the related Pooled Mortgage Loan and Serviced
Non-Pooled Pari Passu Companion Loan).
Notwithstanding any contrary provision above, any reimbursements of
Servicing Advances out of such Companion Note Custodial Account shall be made
(to the extent of their respective entitlements to such reimbursements and/or
payments): first, to the Fiscal Agent; second, to the Trustee; third, to the
Special Servicer; and fourth, to the applicable Master Servicer.
The applicable Master Servicer shall pay to the Special Servicer from
the related Companion Note Custodial Account amounts permitted to be paid to the
Special Servicer therefrom in respect of Special Servicing Fees, Workout Fees or
otherwise, such payment (other than a payment of Special Servicing Fees and
other than a payment of Workout Fees arising from collections other than the
initial collection on a Corrected Mortgage Loan) to be based upon a written
statement of the Special Servicer describing the item and amount to which the
Special Servicer is entitled. The applicable Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein.
The Trustee, the Fiscal Agent, the Depositor, the applicable Master
Servicer and the Special Servicer shall in all cases have a right prior to the
related Serviced Non-Pooled Pari Passu Companion Noteholder to any particular
funds on deposit in a Companion Note Custodial Account from time to time for the
reimbursement or payment of compensation, Servicing Advances (with interest
thereon at the Reimbursement Rate) and their respective expenses hereunder, but
only if and to the extent such compensation, Servicing Advances (with interest)
and expenses are to be reimbursed or paid from such funds on deposit in such
Companion Note Custodial Account pursuant to the express terms of this Agreement
and/or the related Mortgage Loan Group Intercreditor Agreement.
The applicable Master Servicer shall withdraw from the Companion Note
Custodial Account and pay to the related Serviced Non-Pooled Pari Passu
Companion Loan Noteholder (in accordance with such Person's written
instructions) all amounts received on or with respect to the related Serviced
Non-Pooled Pari Passu Companion Loan or any successor REO Mortgage Loan with
respect thereto that are deposited in such Companion Note Custodial Account
(exclusive of any portion of those amounts which the applicable Master Servicer
has actual knowledge are then payable or reimbursable to any Person pursuant to
any of clauses (ii) through (xiii) of the first paragraph of this Section
3.05(f)) on the Business Day following the applicable Master Servicer's receipt
of such amounts.
SECTION 3.06. Investment of Funds in the Accounts.
(a) Each applicable Master Servicer may direct (pursuant to a standing
order or otherwise) any depositary institution (including the Certificate
Administrator) that holds its Collection Account or any Companion Note Custodial
Account, Servicing Account or Reserve Account maintained by it, the Special
Servicer may direct (pursuant to a standing order or otherwise) any depositary
institution (including the Certificate Administrator) that holds the REO
Account, and the Certificate Administrator may direct (pursuant to a standing
order or otherwise) any depositary institution that holds the Distribution
Account, the Interest Reserve Account or the Excess Liquidation Proceeds Account
to invest, or if any of the Master Servicers, the Special Servicer or the
Certificate Administrator, as appropriate, is such depositary institution, such
Master Servicer, the Special Servicer or the Certificate Administrator, as the
case may be, may invest itself, the funds held therein in (but 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 Investment Account pursuant to this Agreement or the related Mortgage Loan
Documents, as applicable, or with respect to Permitted Investments of funds held
in the Distribution Account, no later than 11:00 a.m., New York City time, on
the next succeeding Distribution Date; provided that any such investment of
funds in any Servicing Account or Reserve Account shall be subject to applicable
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law and the terms of the related Mortgage Loan Documents; and provided, further,
that the funds in any Investment Account shall remain uninvested unless and
until the applicable Master Servicer, the Special Servicer or the Certificate
Administrator, as appropriate, gives timely investment instructions with respect
thereto pursuant to or as contemplated by this Section 3.06. 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). Each applicable Master Servicer (with respect to
Permitted Investments of amounts in its Collection Account or any Companion Note
Custodial Account, Servicing Account or Reserve Account maintained by it), the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Account), and the Certificate Administrator (with respect to Permitted
Investments of amounts in the Distribution Account, the Interest Reserve Account
or the Excess Liquidation Proceeds Account) acting on behalf of the Trustee,
shall (and Trustee hereby designates the applicable Master Servicer, the Special
Servicer or the Certificate Administrator, as the case may be, as the Person
that shall) (i) be the "entitlement holder" of any Permitted Investment that is
a "security entitlement" and (ii) maintain "control" of any Permitted Investment
that is either a "certificated security" or an "uncertificated security". For
purposes of this Section 3.06(a), the terms "entitlement holder", "security
entitlement", "control", "certificated security" and "uncertificated security"
shall have the meanings given such terms in Revised Article 8 (1994 Revision) of
the UCC, and "control" of any Permitted Investment by a Master Servicer, the
Special Servicer or the Certificate Administrator shall constitute "control" by
a Person designated by, and acting on behalf of, the Trustee for purposes of
Revised Article 8 (1994 Revision) of the UCC. If amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the party hereunder that maintains such Investment Account (whether it
is a Master Servicer, the Special Servicer or the Certificate Administrator),
shall:
(x) 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 at least equal to the lesser of (1) all amounts then
payable thereunder and (2) the amount required to be
withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by such Master Servicer, the Special Servicer
or the Certificate Administrator, as the case may be, that
such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in such
Investment Account.
(b) Whether or not a Master Servicer directs the investment of funds in
any Investment Account (other than a Servicing Account or Reserve Account)
maintained by it, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05. Whether or not a Master Servicer directs the
investment of funds in any Servicing Account or Reserve Account maintained by
it, interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for such Investment Account for
each Collection Period, and subject to the requirements of applicable law or the
terms of the related Serviced Mortgage Loan(s) regarding the payment of such
interest and investment income to the related Borrower, shall be for the sole
and exclusive benefit of such Master Servicer and shall be subject to withdrawal
from time to time in accordance with Section 3.03. 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 such Investment Account 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). Whether
or not the Certificate Administrator directs the investment of funds in the
Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account, interest and investment income realized on funds deposited
therein, to the extent of the Net Investment Earnings, if any, for each such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Certificate Administrator and shall be subject to its
withdrawal in accordance with Section 3.05. If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
party hereunder that maintains such Investment Account (whether it is a Master
Servicer, the Special Servicer or the Certificate Administrator), 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
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the Net Investment Loss, if any, in respect of such Investment Account for such
Collection Period (except, in the case of any such loss with respect to a
Servicing Account or Reserve Account, to the extent the loss amounts were
invested for the benefit of a Borrower under the terms of a Serviced Mortgage
Loan or applicable law).
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment of funds on deposit in any Investment
Account, and if the party hereunder that maintains such Investment Account
(whether it is a Master Servicer, the Special Servicer or the Certificate
Administrator) is in default of its obligations under or contemplated by Section
3.06(b), the Trustee may (and, subject to Section 8.02, upon the request of (i)
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class of Regular Interest Certificates, (ii) the Controlling
Class Representative or (iii) alternatively, but only if the Permitted
Investment involves funds on deposit in a Companion Note Custodial Account, the
related Serviced Non-Pooled Mortgage Loan Noteholder (it being understood that,
for purposes of this clause (iii), Section 8.02 shall be construed as if
references therein to one or more "Certificateholders" were instead references
to such Serviced Non-Pooled Mortgage Loan Noteholder), the Trustee shall) take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate legal proceedings. Any
costs incurred by the Trustee in taking any such action shall be reimbursed to
it by the party hereunder that maintains such Investment Account (whether it is
a Master Servicer, the Special Servicer or the Certificate Administrator). This
provision is in no way intended to limit any actions that a Master Servicer, the
Special Servicer or the Certificate Administrator may take in this regard at its
own expense.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amounts and
the monthly amounts payable to the respective Serviced Non-Pooled Mortgage Loan
Noteholders, 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) In the case of each Performing Serviced Mortgage Loan, the
applicable Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to maintain (including
identifying the extent to which a Borrower is maintaining insurance coverage
and, if such Borrower does not so maintain, such Master Servicer will itself
cause to be maintained with Qualified Insurers having the Required Claims-Paying
Ratings) for the related Mortgaged Property (x) a fire and casualty extended
coverage insurance policy, which does not provide for reduction due to
depreciation, in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or (ii) the
outstanding principal balance of such Mortgage Loan, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (y)
all other insurance coverage (including but not limited to coverage for damage
resulting from acts of terrorism) as is required or that the lender is entitled
to reasonably require, subject to applicable law, under the related Mortgage
Loan Documents; provided that all of the following conditions and/or limitations
shall apply:
(A) the applicable Master Servicer shall not be required to
maintain any earthquake or environmental insurance policy on any Mortgaged
Property securing a Performing Serviced Mortgage Loan unless such insurance
policy was in effect at the time of the origination of such Mortgage Loan
pursuant to the terms of the related Loan Documents and is available at
commercially reasonable rates (and if the applicable Master Servicer does
not cause the Borrower to maintain or does not itself maintain such
earthquake or environmental insurance policy on any Mortgaged Property, the
Special Servicer shall have the right, but not the duty, to obtain, at the
Trust's expense, earthquake or environmental insurance on any Mortgaged
Property securing a Specially Serviced Mortgage Loan or on an Administered
REO Property so long as such insurance is available at commercially
reasonable rates);
(B) if and to the extent that any Performing Serviced Mortgage
Loan grants the lender thereunder any discretion (by way of consent,
approval or otherwise) as to the insurance provider from whom the related
Borrower is to obtain the requisite insurance coverage, the applicable
Master Servicer shall (to the extent
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consistent with the Servicing Standard) require the related Borrower to
obtain the requisite insurance coverage from Qualified Insurers that, in
each case, have the Required Claims-Paying Ratings at the time such
insurance coverage is obtained;
(C) the applicable Master Servicer shall have no obligation beyond
using its reasonable efforts consistent with the Servicing Standard to cause
the Borrower under any Performing Serviced Mortgage Loan to maintain the
insurance required to be maintained or that the lender is entitled to
reasonably require, subject to applicable law, under the related Mortgage
Loan Documents;
(D) in no event shall the applicable Master Servicer be required
to cause the Borrower under any Performing Serviced Mortgage Loan to
maintain, or itself obtain, insurance coverage that the applicable Master
Servicer has determined is either (i) not available at any rate or (ii) not
available at commercially reasonable rates and the related hazards are not
at the time commonly insured against for properties similar to the related
mortgaged property and located in or around the region in which the related
Mortgaged Property is located (in each case, as determined by the applicable
Master Servicer, which shall be entitled to rely, at its own expense, on
insurance consultants in making such determination) (and provided that any
such determinations by the applicable Master Servicer must be made not less
frequently (but need not be made more frequently) than annually but in any
event shall be made at the approximate date on which the applicable Master
Servicer receives notice of the renewal, replacement or cancellation of
coverage);
(E) the reasonable efforts of the applicable Master Servicer to
cause the Borrower under any Performing Serviced Mortgage Loan to maintain
insurance shall be conducted in a manner that takes into account the
insurance that would then be available to the applicable Master Servicer on
a force-placed basis; and
(F) to the extent the applicable Master Servicer itself is
required to maintain insurance that the Borrower under any Performing
Serviced Mortgage Loan does not maintain, the applicable Master Servicer
shall not be required to maintain insurance other than what is available to
such Master Servicer on a force-placed basis (and this will not be construed
to modify the other limits set forth in clause (D) above).
Notwithstanding the limitation set forth in clause (D) above, the
applicable Master Servicer shall, prior to availing itself of any limitation
described in that clause with respect to any Performing Serviced Mortgage Loan
that has a Stated Principal Balance in excess of $2,500,000, obtain the approval
or disapproval of the Special Servicer (and, in connection therewith, the
Special Servicer shall be required to comply with any applicable provisions of
Section 3.24). The applicable Master Servicer shall be entitled to rely on the
determination of the Special Servicer made in connection with such approval or
disapproval. The Special Servicer shall decide whether to withhold or grant such
approval in accordance with the Servicing Standard. If any such approval has not
been expressly denied within seven Business Days of the Special Servicer's
receipt from the applicable Master Servicer of such Master Servicer's
determination and analysis and all information reasonably requested thereby and
reasonably available to the applicable Master Servicer in order to make an
informed decision, such approval shall be deemed to have been granted.
The applicable Master Servicer shall notify the Special Servicer, the
Trustee, the Controlling Class Representative and (if the Serviced Mortgage Loan
Group is involved) the related Serviced Non-Pooled Mortgage Loan Noteholder, if
the applicable Master Servicer determines that the Borrower under any Performing
Serviced Mortgage Loan has failed to maintain insurance required under (or that
such Master Servicer has required pursuant to a provision that entitles the
lender to reasonably require insurance under) the related Mortgage Loan
Documents and such failure materially and adversely affects such Mortgage Loan
and/or the interest of the Trust in the related Mortgaged Property or if the
Borrower under any Performing Serviced Mortgage Loan has notified the applicable
Master Servicer in writing that the Borrower does not intend to maintain such
insurance and the applicable Master Servicer has determined that such failure
materially and adversely affects such Mortgage Loan and/or the interest of the
Trust in the related Mortgaged Property.
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Subject to Section 3.17(b) and/or Section 3.24, as applicable, with
respect to each Specially Serviced Mortgage Loan and Administered REO Property,
the Special Servicer shall use reasonable efforts, consistent with the Servicing
Standard, to maintain (and, in the case of Specially Serviced Mortgage Loans,
the Special Servicer shall itself maintain, subject to the right of the Special
Servicer to (x) direct the applicable Master Servicer to make a Servicing
Advance for the costs associated with coverage that the Special Servicer
determines to maintain, in which case the applicable Master Servicer shall make
such Servicing Advance (subject to Section 3.19(b)), or (y) direct the
applicable Master Servicer to cause such coverage to be maintained under the
applicable Master Servicer's force-place insurance policy, in which case the
applicable Master Servicer shall so cause such coverage to be maintained
thereunder to the extent that the identified coverage is available under the
applicable Master Servicer's existing force-place policy) with Qualified
Insurers having the Required Claims-Paying Ratings (a) a fire and casualty
extended coverage insurance policy, which does not provide for reduction due to
depreciation, in an amount that is at least equal to the lesser of (i) the full
replacement cost of improvements securing such Mortgage Loan or at such REO
Property or (ii) the outstanding principal balance of such Mortgage Loan or the
related REO Mortgage Loan, but, in any event, in an amount sufficient to avoid
the application of any co-insurance clause, (b) a comprehensive general
liability insurance policy with coverage comparable to that which would be
required under prudent lending requirements and in an amount not less than $1
million per occurrence and (c) to the extent consistent with the Servicing
Standard, a business interruption or rental loss insurance covering revenues or
rents for a period of at least twelve (12) months or, with respect to Mortgage
Loans with initial principal balances greater than $35 million, at least
eighteen (18) months, in each case if so required pursuant to the related
Mortgage Loan Documents; provided, however, that neither the applicable Master
Servicer nor the Special Servicer shall be required in any event to maintain or
obtain the insurance coverage otherwise described by this paragraph beyond what
is available at commercially reasonable rates and consistent with the Servicing
Standard.
All such insurance policies maintained as described above shall contain
(if they insure against loss to property) a "standard" mortgagee clause, with
loss payable to the applicable Master Servicer on behalf of the Trustee, in the
case of insurance maintained in respect of a Serviced Mortgage Loan, or shall
name the Trustee as the insured, with loss payable to the Special Servicer on
behalf of the Trustee, in the case of insurance maintained in respect of an
Administered REO Property. Any amounts collected by a 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 Borrower, in each case in accordance with
the Servicing Standard) shall be deposited in the Collection Account of the
applicable Master Servicer and/or a related Companion Note Custodial Account, as
appropriate in accordance with Section 3.04, subject to withdrawal pursuant to
Section 3.05, in the case of amounts received in respect of a Serviced Mortgage
Loan, or in the REO Account of the Special Servicer, subject to withdrawal
pursuant to Section 3.16(c), in the case of amounts received in respect of an
Administered REO Property. Any cost incurred by a Master Servicer or the Special
Servicer in maintaining any such insurance shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
unpaid principal balance or Stated Principal Balance of the related Serviced
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit;
provided, however, that this sentence shall not limit the rights of a Master
Servicer or the Special Servicer on behalf of the Trust (and, if applicable, the
Serviced Non-Pooled Mortgage Loan Noteholders) to enforce any obligations of the
related Borrower under such Mortgage Loan. Costs to a Master Servicer or the
Special Servicer of maintaining insurance policies pursuant to this Section 3.07
shall (subject to Section 3.11(h) and Section 3.19(b)) be paid by, and
reimbursable to, such Master Servicer or Special Servicer, as the case may be,
as a Servicing Advance.
(b) If (i) a Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force-placed policy insuring against hazard losses on all of the Serviced
Mortgage Loans or Administered REO Properties, as applicable, as to which it is
the applicable Master Servicer or the Special Servicer, as the case may be,
then, to the extent such policy (A) is obtained from a Qualified Insurer having
the Required Claims-Paying Ratings, and (B) provides protection equivalent to
the individual policies otherwise required herein and in the Mortgage Loan
Documents or (ii) a Master Servicer or the Special Servicer has long-term
unsecured debt obligations that are rated not lower than "A2" by Xxxxx'x and "A"
by S&P and such Master Servicer or the Special Servicer, as the case may be,
self-insures for its obligation to maintain, and deposits into its Collection
Account (any such deposit to be deemed to constitute "Insurance Proceeds") the
amount of any loss to the Trust that would have been
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covered by, the individual policies otherwise required, such 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 or REO Properties, as applicable. Such a blanket or
master force-placed policy may contain a deductible clause (not in excess of a
customary amount), in which case the applicable Master Servicer or the Special
Servicer, as the case may be, whichever maintains such policy, shall, if there
shall not have been maintained on any Mortgaged Property securing a Serviced
Mortgage Loan or any Administered REO Property thereunder 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 an individual
policy, promptly deposit into the applicable Collection Account (or, to the
extent the loss affects a related Serviced Non-Pooled Mortgage Loan Noteholder,
in the related Companion Note Custodial Account) maintained by the applicable
Master Servicer, from its own funds without any right of reimbursement from the
Trust, the amount not otherwise payable under the blanket or master force-placed
policy in connection with such loss or losses because of such deductible clause
to the extent that any such deductible exceeds the deductible limitation that
pertained to the related Serviced Mortgage Loan (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicers and the Special
Servicer shall each prepare and present, on behalf of itself, the Trustee and
Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan
Noteholders, claims under any such blanket or master force-placed policy
maintained by it in a timely fashion in accordance with the terms of such
policy.
(c) With respect to each Performing Serviced Mortgage Loan that is
subject to an Environmental Insurance Policy, if the applicable Master Servicer
has actual knowledge of any event (an "Insured Environmental Event") giving rise
to a claim under an Environmental Insurance Policy, such Master Servicer shall
notify the Special Servicer to such effect and such Master Servicer shall take
reasonable actions as are in accordance with the Servicing Standard and the
terms and conditions of such Environmental Insurance Policy to make a claim
thereunder and achieve the payment of all amounts to which the Trust is entitled
thereunder. With respect to each Specially Serviced Mortgage Loan and
Administered REO Property that is subject to an Environmental Insurance Policy,
if the Special Servicer has actual knowledge of any event giving rise to a claim
under an Environmental Insurance Policy, the Special Servicer shall take
reasonable actions as are in accordance with the Servicing Standard and the
terms and conditions of such Environmental Insurance Policy to make a claim
thereunder and achieve the payment of all amounts to which the Trust is entitled
thereunder. Any legal fees or other out-of-pocket costs incurred in accordance
with the Servicing Standard in connection with any claim under an Environmental
Insurance Policy described above (whether by the applicable Master Servicer or
the Special Servicer) shall be (subject to Section 3.11(h) and Section 3.19(b))
paid by, and reimbursable to, such Master Servicer or Special Servicer, as the
case may be, as a Servicing Advance.
(d) The Master Servicers and the Special Servicer shall each 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 during which Specially
Serviced Mortgage Loans and/or Administered REO Properties exist as part of the
Trust Fund) keep in force with a Qualified Insurer having the Required
Claims-Paying Ratings, a fidelity bond in such form and amount as are consistent
with the Servicing Standard. A Master Servicer or 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 such Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide that it may not
be canceled without ten days' prior written notice to the Trustee. So long as
the long-term unsecured debt obligations of a Master Servicer or the Special
Servicer are rated not lower than "Baa2" by Moody's and "BBB" by S&P, such
Master Servicer or Special Servicer may self-insure with respect to the fidelity
bond coverage required as described above, in which case it shall not be
required to maintain an insurance policy with respect to such coverage.
The Master Servicers and the Special Servicer shall each 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 during which Specially Serviced
Mortgage Loans and/or Administered REO Properties exist as part of the Trust
Fund) also keep in force with a Qualified Insurer having the Required
Claims-Paying Ratings, a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder, which policy or policies
shall be in such form and amount as are consistent with the Servicing Standard.
A Master Servicer or the Special
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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 such Master Servicer or
the Special Servicer, as the case may be. Any such errors and omissions policy
shall provide that it may not be canceled without ten days' prior written notice
to the Trustee. So long as the long-term unsecured debt obligations of a Master
Servicer or the Special Servicer are rated not lower than "Baa2" by Moody's and
"BBB" by S&P, such Master Servicer or Special Servicer may self-insure with
respect to the errors and omissions coverage required as described above, in
which case it shall not be required to maintain an insurance policy with respect
to such coverage.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) If the provisions of any Serviced Mortgage Loan expressly permits
the assignment of the related Mortgaged Property to, and assumption of such
Mortgage Loan by, another Person upon the satisfaction of specified conditions,
prohibits such an assignment or assumption except upon the satisfaction of
specified conditions or fully prohibits such an assignment and assumption, and
the related Borrower requests approval for such an assignment and assumption or
enters into a transfer of the related Mortgaged Property in violation of the
related Mortgage Loan Documents, or if the provisions of any Mortgage Loan
expressly permits the further encumbrance of the related Mortgaged Property upon
the satisfaction of specified conditions, prohibits such a further encumbrance
except upon the satisfaction of specified conditions or fully prohibits such a
further encumbrance, and the related Borrower requests approval for such a
further encumbrance or enters into a further encumbrance in violation of the
related Mortgage Loan Documents, the applicable Master Servicer (with respect to
a Performing Mortgage Loan) or the Special Servicer (with respect to a Specially
Serviced Mortgage Loan) shall obtain the relevant information and review and
make a determination to either (i) disapprove such request for approval of an
assignment and assumption or further encumbrance (in the case of a Borrower
request for approval thereof) and not waive any violation of the relevant
due-on-sale clause or due-on-encumbrance clause or (ii) if in the best economic
interest of the Trust and, if applicable, any affected Serviced Non-Pooled
Mortgage Loan Noteholder(s) (as a collective whole), approve the request or
waive the effect of the due-on-sale or due-on-encumbrance clause; provided,
however, that all of the following conditions and/or restrictions shall apply:
(A) the applicable Master Servicer shall not enter into such a
waiver or approval for any Performing Serviced Mortgage Loan that is a
Pooled Mortgage Loan, unless such Master Servicer has obtained the consent
of the Special Servicer (it being understood and agreed that (1) the
applicable Master Servicer shall promptly provide the Special Servicer with
notice of any Borrower request for such assignment or assumption, the
applicable Master Servicer's recommendations and analysis, and with all
information reasonably available to the applicable Master Servicer that the
Special Servicer may reasonably request in order to withhold or grant any
such consent, (2) the Special Servicer shall decide whether to withhold or
grant such consent in accordance with the Servicing Standard (and subject to
Section 3.24), (3) except with respect to any Nationwide Pooled Mortgage
Loan, if any such consent has not been expressly denied within seven
Business Days of the Special Servicer's receipt from the applicable Master
Servicer of such Master Servicer's recommendations and analysis and all
information reasonably requested thereby and reasonably available to the
applicable Master Servicer in order to make an informed decision, such
consent shall be deemed to have been granted, and (4) solely with respect to
any Nationwide Pooled Mortgage Loan, any such consent shall be deemed to
have been granted if such consent has not been expressly denied either (x)
within ten Business Days of the Special Servicer's receipt of the applicable
Master Servicer's recommendations and analysis, if the Special Servicer has
not requested additional information as described above on or before the
date that is four Business Days following the Special Servicer's initial
receipt of the applicable Master Servicer's recommendations and analysis, or
(y) within six Business Days following the Special Servicer's receipt of the
additional information requested by the Special Servicer as described above,
if the Special Servicer has requested such additional information on or
before the date that is four Business Days following the Special Servicer's
initial receipt of the applicable Master Servicer's recommendations and
analysis);
(B) (1) if approval of an assignment and assumption or waiver of a
due-on-sale provision is involved and the affected Serviced Mortgage Loan is
a Pooled Mortgage Loan that (together with all other Pooled Mortgage Loans,
if any, that are in the same Cross-Collateralized Group as such Pooled
Mortgage Loan or have
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the same Borrower as such Pooled Mortgage Loan or have Borrowers that are
known to be affiliated with the Borrower under such Pooled Mortgage Loan) is
one of the ten largest Pooled Mortgage Loans then in the Trust or has a
Cut-off Date Principal Balance in excess of $20,000,000, then, subject to
the related Mortgage Loan Documents and applicable law, neither the
applicable Master Servicer (with respect to a Serviced Pooled Mortgage Loan
other than a Specially Serviced Pooled Mortgage Loan) nor the Special
Servicer (with respect to a Specially Serviced Pooled Mortgage Loan) shall
enter into such approval or waiver unless and until it has received written
confirmation from each Rating Agency that such action would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates and (2)
if approval of an assignment and assumption or waiver of a due-on-sale
provision is involved and the affected Serviced Mortgage Loan is the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan, then, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer (if such Serviced Pooled Mortgage Loan is not a Specially Serviced
Pooled Mortgage Loan) nor the Special Servicer (if such Serviced Pooled
Mortgage Loan is a Specially Serviced Pooled Mortgage Loan) shall enter into
such approval or waiver unless and until it has received written
confirmation from each applicable Rating Agency for the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities that such action would not
result in an Adverse Rating Event with respect to any class of 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency;
(C) (1) if approval of a further encumbrance or waiver of a
due-on-encumbrance provision is involved, then, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer (with respect to a Performing Serviced Mortgage Loan) nor the
Special Servicer (with respect to a Specially Serviced Mortgage Loan) shall
enter into such approval or waiver unless and until it has received written
confirmation that such action would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates from each Rating Agency,
with respect to any Serviced Pooled Mortgage Loan that (a) represents 2% or
more of the then aggregate principal balance of all of the Pooled Mortgage
Loans then in the Trust Fund, (b) is one of the ten largest Pooled Mortgage
Loans then in the Trust Fund by principal balance, (c) has an aggregate
loan-to-value ratio (including existing and proposed additional debt) that
is equal to or greater than 85% or (d) has an aggregate debt service
coverage ratio (including the debt service on the existing and proposed
additional debt) that is less than 1.2x and (2) if approval of a further
encumbrance or waiver of a due-on-encumbrance provision is involved and the
affected Serviced Mortgage Loan is the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan, then, subject to the related Mortgage Loan Documents and
applicable law, neither the applicable Master Servicer (if such Serviced
Pooled Mortgage Loan is not a Specially Serviced Pooled Mortgage Loan) nor
the Special Servicer (if such Serviced Pooled Mortgage Loan is a Specially
Serviced Pooled Mortgage Loan) shall enter into such approval or waiver
unless and until it has received written confirmation from each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities that such action would not result in an Adverse Rating Event with
respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities rated by such Rating Agency;
(D) if approval of an assignment and assumption or waiver of a
due-on-sale provision is involved, then, subject to the related Mortgage
Loan Documents and applicable law, neither the applicable Master Servicer
(with respect to a Performing Serviced Mortgage Loan) nor the Special
Servicer (with respect to a Specially Serviced Mortgage Loan) shall enter
into such approval or waiver with respect to any Mortgaged Property which
secures a Cross-Collateralized Group unless (i) all of the Mortgaged
Properties securing such Cross-Collateralized Group are transferred
simultaneously by the respective Borrower(s) or (ii) either (x) in the case
of a Master Servicer, it has obtained the consent of the Special Servicer
(pursuant to the approval procedures described in clause (A) above) or (y)
in the case of the Special Servicer, it has obtained the consent of the
Controlling Class Representative if and to the extent required under Section
3.24);
(E) subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer (with respect to a Performing
Serviced Mortgage Loan) nor the Special Servicer (with respect to a
Specially Serviced Mortgage Loan) shall enter into such approval or waiver
unless all associated costs and expenses (including the costs of any
confirmation(s) of the absence of an Adverse Rating Event) are covered
without any expense to the Trust or (in the case of the Serviced Mortgage
Loan Group) any expense to any related
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Serviced Non-Pooled Mortgage Loan Noteholder(s) (it being understood and
agreed that, except as expressly provided herein, neither the applicable
Master Servicer nor the Special Servicer shall be obligated to cover or
assume any such costs or expenses);
(F) neither the applicable Master Servicer (with respect to a
Performing Serviced Mortgage Loan) nor the Special Servicer (with respect to
a Specially Serviced Mortgage Loan) shall, in connection with any such
approval or waiver, consent or agree to any modification, waiver or
amendment of any term or provision of such Serviced Mortgage Loan that would
result in an Adverse REMIC Event with respect to any REMIC Pool or any
Adverse Grantor Trust Event with respect to either Grantor Trust Pool; and
(G) the Special Servicer shall not consent to a Master Servicer's
recommendation described in clause (A) above, or itself enter into such an
approval or waiver, unless the Special Servicer has complied with Section
3.24.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of an assignment and assumption or further encumbrance be
conditioned on the approval or absence of objection from the Special Servicer if
(a) the transaction is permitted under the related Mortgage Loan Documents and
(b) the conditions to the transaction that are set forth in the related Mortgage
Loan Documents do not include the approval of the lender or the exercise of
lender discretion (other than confirming the satisfaction of the other
conditions to the transaction set forth in the related Mortgage Loan Documents
that do not include any other approval or exercise).
(b) In connection with any permitted assumption of any Serviced
Mortgage Loan or waiver of a "due-on-sale" or "due-on-encumbrance" clause
thereunder, the applicable Master Servicer (in the case of a Performing Serviced
Mortgage Loan) or the Special Servicer (in the case of a Specially Serviced
Mortgage Loan) shall prepare all documents necessary and appropriate for such
purposes and shall coordinate with the related Borrower for the due execution
and delivery of such documents.
(c) The applicable Master Servicer shall have the right to consent to
any transfers of an interest in the Borrower under a Performing Serviced
Mortgage Loan, to the extent such transfer is allowed under the terms of the
related Mortgage Loan Documents (without the exercise of any lender approval or
discretion other than confirming the satisfaction of the other conditions to the
transfer set forth in the related Mortgage Loan Documents that do not include
any other approval or exercise of discretion), including any consent to transfer
to any subsidiary or affiliate of such Borrower or to a person acquiring less
than a majority interest in such Borrower; provided, however, that, subject to
the terms of the related Mortgage Loan Documents and applicable law, if (i) the
affected Serviced Mortgage Loan is a Pooled Mortgage Loan that, together with
all other Pooled Mortgage Loans, if any, that are in the same
Cross-Collateralized Group as such Pooled Mortgage Loan or have the same
Borrower as such Pooled Mortgage Loan or have Borrowers that are known to be
affiliated with the Borrower under such Pooled Mortgage Loan, has a Stated
Principal Balance that equals or exceeds 5% of the then aggregate Stated
Principal Balance of the Mortgage Pool or is one of the then current top ten
Pooled Mortgage Loans (by Stated Principal Balance) in the Mortgage Pool or has
a Cut-off Date Principal Balance in excess of $20,000,000, and (ii) the transfer
is of an interest in the Borrower greater than 49%, then the applicable Master
Servicer shall not consent to such transfer unless and until it has received
written confirmation from each Rating Agency that such action would not result
in an Adverse Rating Event with respect to any Class of Rated Certificates (the
costs of which are to be payable by the related Borrower to the extent provided
for in the related Mortgage Loan Documents, which provisions shall not be waived
by the applicable Master Servicer, and, if not paid, such costs shall be paid by
and reimbursed to the applicable Master Servicer as an Additional Trust Fund
Expense); provided, further, however, that, subject to the terms of the related
Mortgage Loan Documents and applicable law, if (i) the affected Serviced
Mortgage Loan is the 11 Penn Plaza Pooled Mortgage Loan or the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan, and (ii) the transfer is of an interest in
the Borrower greater than 49%, then the applicable Master Servicer shall not
consent to such transfer unless and until it has received written confirmation
from each Rating Agency for the Rated Certificates that such action would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also a written confirmation from
each applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities that such action would not result in an Adverse Rating
Event with respect to any
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class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by
such Rating Agency (the costs of which are to be payable by the related Borrower
to the extent provided for in the related Mortgage Loan Documents, which
provisions shall not be waived by the applicable Master Servicer, and, if not
paid, such costs shall be paid by and reimbursed to the applicable Master
Servicer as an Additional Trust Fund Expense). The applicable Master Servicer
shall be entitled to collect and receive from Borrowers any customary fees in
connection with such transfers of interest as Additional Master Servicing
Compensation.
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b), 3.09(c),
3.09(d) and 3.24, exercise reasonable efforts, consistent with the Servicing
Standard, to foreclose upon or otherwise comparably convert the ownership of the
real property and other collateral securing any Serviced Mortgage Loan that
comes into and continues in default and as to which no satisfactory arrangements
can be made for collection of delinquent payments, including pursuant to Section
3.20; provided that neither Master Servicer shall, with respect to any Serviced
Mortgage Loan that is an ARD Mortgage Loan after its Anticipated Repayment Date,
take any enforcement action with respect to the payment of Post-ARD Additional
Interest (other than the making of requests for its collection), and the Special
Servicer may take such enforcement action only if (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. In connection with the foregoing, in the event of a default
under any Serviced Mortgage Loan or Cross-Collateralized Group that is secured
by real properties located in multiple states, and such states include
California or another state with a statute, rule or regulation comparable to
California's "one action rule", then the Special Servicer shall consult
Independent counsel regarding the order and manner in which the Special Servicer
should foreclose upon or comparably proceed against such properties. The Special
Servicer may direct the applicable Master Servicer to advance, as contemplated
by Section 3.19(b), all costs and expenses (including attorneys fees and
litigation costs and expenses) to be incurred on behalf of the Trust in any such
proceedings or such consultation, subject to the applicable Master Servicer
being entitled to reimbursement for any such advance as a Servicing Advance as
provided in Section 3.05(a), and further subject to the Special Servicer's being
entitled to pay out of the related Liquidation Proceeds, Insurance Proceeds
and/or Condemnation Proceeds any Liquidation Expenses incurred in respect of any
Serviced Mortgage Loan, which Liquidation Expenses were outstanding at the time
such proceeds are received. Nothing contained in this Section 3.09 shall be
construed so as to require the Special Servicer, on behalf of the Trust, to make
a bid on any Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess of the fair market value of such property, as determined by the
Special Servicer taking into account the factors described in Section 3.18 and
the results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when the applicable Master Servicer or the Special
Servicer deems it necessary in accordance with the Servicing Standard for
purposes of establishing the fair market value of any Mortgaged Property
securing a defaulted Serviced Mortgage Loan, whether for purposes of bidding at
foreclosure or otherwise, such Master Servicer or the Special Servicer (as the
case may be) is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall be covered by, and be reimbursable
as, a Servicing Advance).
Neither Master Servicer shall foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing a defaulted Serviced Mortgage Loan. The Special Servicer and
the Master Servicers shall not foreclose upon or otherwise comparably convert,
including by taking title thereto, any real property or other collateral
securing the Non-Trust-Serviced Pooled Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Trust (and, in the case of the Serviced Mortgage Loan Group, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)) under such circumstances, in
such manner or pursuant to such terms
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as would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by any REMIC Pool at any given time constitutes not more than a de
minimis amount of the assets of such REMIC Pool within the meaning of Treasury
Regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as permitted by
Section 3.17(a), subject the Trust to the imposition of any federal income or
prohibited transaction taxes under the Code. Subject to the foregoing, however,
a Mortgaged Property may be acquired through a single member limited liability
company. In addition, except as permitted under Section 3.17(a), the Special
Servicer shall not acquire any personal property on behalf of the Trust (and, in
the case of the Serviced Mortgage Loan Group, the related Serviced Non-Pooled
Mortgage Loan Noteholder(s)) 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 shall be covered by, and reimbursable as, a
Servicing Advance) to the effect that the holding of such personal property
as part of the Trust Fund will not result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trust (and, in the case of the
Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), have a receiver of rents appointed with respect to a Mortgaged
Property, or obtain title to a Mortgaged Property by foreclosure, 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 Special
Servicer, exercised 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, unless:
(i) the Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental Assessments
and performed during the 12-month period preceding any such acquisition of
title or other action, that such Mortgaged Property is in compliance with
applicable environmental laws and regulations and 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
(ii) in the event that the determination described in clause
(c)(i) above cannot be made, the Special Servicer has previously determined
in accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, and taking into account the coverage provided under the
related Environmental Insurance Policy, that it would maximize the recovery
to the Certificateholders and, in the case of a Mortgaged Property securing
the Serviced Mortgage Loan Group, to the related Serviced Non-Pooled
Mortgage Loan Noteholder(s) (as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be
distributable to Certificateholders and, in the case of a Mortgaged Property
securing the Serviced Mortgage Loan Group, to the related Serviced
Non-Pooled Mortgage Loan Noteholder(s), to be performed at the related Net
Mortgage Rate (or (x) in the case of an ARD Mortgage Loan after its
Anticipated Repayment Date, at the related Net Mortgage Rate immediately
prior to the Anticipated Repayment Date, or (y) in the case of the Serviced
Mortgage Loan Group, at the weighted average of the Net Mortgage Rates for
the related Mortgage Loans)) to acquire title to or possession of the
Mortgaged Property and to take such remedial, corrective and/or other
further actions as are necessary to bring the Mortgaged Property into
compliance with applicable environmental laws and regulations and to
appropriately address any of the circumstances and conditions referred to in
clause (c)(i) above.
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Any such determination by the Special Servicer contemplated by clause
(i) or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the applicable Master
Servicer and the Controlling Class Representative (and, in the case of a
Mortgaged Property securing the Serviced Mortgage Loan Group, to the related
Serviced Non-Pooled Mortgage Loan Noteholder(s)), specifying all of the bases
for such determination, such Officer's Certificate to be accompanied by all
related environmental reports.
The cost of such Phase I Environmental Assessment and any such
additional environmental testing, 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 paid out of the applicable Collection
Account (subject to, if it relates to one or more Mortgage Loans in the Serviced
Mortgage Loan Group, the proviso at the end of the first paragraph (that is, the
initial paragraph that includes the enumerated clauses (i) through (xxii)) of
subsection (I) of Section 3.05(a)).
(d) If neither of the conditions set forth in clauses (i) and (ii) of
the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Mortgage Loan (or, if
applicable, the Serviced Mortgage Loan Group), the Special Servicer shall take
such action as is in accordance with the Servicing Standard (other than
proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trust and, if applicable, the related
Serviced Non-Pooled Mortgage Loan Noteholder(s), release all or a portion of
such Mortgaged Property from the lien of the related Mortgage; provided that, if
such Serviced Mortgage Loan has a then outstanding principal balance 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, the Special Servicer
shall have notified the Rating Agencies, the Controlling Class Representative,
the Trustee, the applicable Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the basis for the
determination that such intention, in the Special Servicer's good faith
judgment, was consistent with the Servicing Standard.
(e) The Special Servicer shall report to the Trustee, the applicable
Master Servicer and the Controlling Class Representative monthly in writing as
to any actions taken by the Special Servicer with respect to any Mortgaged
Property as to which neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied, in each case until
the earliest to occur of satisfaction of either of such conditions, release of
the lien of the related Mortgage on such Mortgaged Property and the related
Serviced Mortgage Loan's (or, in the case of the Serviced Mortgage Loan Group,
each of the related Serviced Mortgage Loan's) becoming a Corrected Mortgage
Loan.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, with respect to any Specially Serviced
Mortgage Loan, the advisability of seeking to obtain a deficiency judgment if
the state in which the related Mortgaged Property is located and the terms of
the subject Mortgage Loan permit such an action and shall, in accordance with
the Servicing Standard, seek such deficiency judgment if it deems advisable. The
applicable Master Servicer, at the direction of the Special Servicer, shall make
a Servicing Advance for the costs incurred in pursuing any such deficiency
action, provided that such Master Servicer shall not be obligated in connection
therewith to advance any funds, which if so advanced would constitute a
Nonrecoverable Advance.
(g) Annually in each January, the applicable Master Servicer shall,
with the reasonable cooperation of the Special Servicer, prepare and file with
the IRS on a timely basis the information returns with respect to the reports of
foreclosures and abandonments and reports relating to any cancellation of
indebtedness income with respect to any Serviced Mortgage Loan for which it is
the applicable Master Servicer, or Mortgaged Property securing a Serviced
Mortgage Loan for which it is the applicable Master Servicer, required by
Sections 6050H (as applicable), 6050J and 6050P of the Code. Contemporaneously
therewith, the applicable Master Servicer shall deliver a copy of such
information returns to the Special Servicer and the Trustee.
(h) As soon as the Special Servicer (or, in the case of the
Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property, the
applicable Master Servicer) makes a Final Recovery Determination (such
determination to be made in consultation with the Controlling Class
Representative and the related calculations to be subject to the approval of the
Controlling Class Representative) with respect to any Mortgage Loan or REO
Property, it shall promptly notify the Certificate Administrator, the Trustee,
the applicable Master Servicer (unless it is the one making the
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determination) and the Controlling Class Representative. The Special Servicer
(or, in the case of the Non-Trust-Serviced Pooled Mortgage Loan or any related
REO Property, the applicable Master Servicer) shall maintain accurate records,
prepared by a Servicing Officer, of each such Final Recovery Determination (if
any) made by it and the basis thereof. Each such Final Recovery Determination
(if any) shall be evidenced by an Officer's Certificate delivered to the
Certificate Administrator, the Trustee, the applicable Master Servicer (unless
it is the one making the determination) and the Controlling Class
Representative, no later than ten Business Days following such Final Recovery
Determination. For purposes of making a Final Recovery Determination with
respect to the Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property, the applicable Master Servicer shall be entitled to rely on any
comparable determination made by the Non-Trust Special Servicer.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Serviced Mortgage Loan, or the
receipt by the applicable Master Servicer of a notification that payment in full
shall be escrowed or made in a manner customary for such purposes, the
applicable Master Servicer shall promptly so notify the Trustee and request
delivery to it or its designee of the related Mortgage File and, in the case of
a Serviced Non-Pooled Mortgage Loan, the Master Servicer shall promptly so
notify the relevant Serviced Non-Pooled Mortgage Loan Noteholder, and request
delivery to it or its designee of the related Mortgage Note, as applicable (such
notice and request to be effected by delivering to the Trustee a Request for
Release in the form of Exhibit C-1 attached hereto, which Request for Release
shall be accompanied by the form of any release or discharge to be executed by
the Trustee and, in the case of the Serviced Non-Pooled Mortgage Loans, the
related Serviced Non-Pooled Mortgage Loan Noteholder, 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 such Master
Servicer's Collection Account and/or, in the case of the Serviced Non-Pooled
Mortgage Loans, in the related Companion Note Custodial Account, as applicable,
pursuant to Section 3.04 have been or will be so deposited). Upon receipt of
such Request for Release, the Trustee and, in the case of the a Serviced
Non-Pooled Mortgage Loan, if applicable, the related Serviced Non-Pooled
Mortgage Loan Noteholder, shall promptly release, or cause any related Custodian
to release, the related Mortgage File to the applicable Master Servicer or its
designee and shall deliver to the applicable Master Servicer or its designee
such accompanying release or discharge, duly executed. No expenses incurred in
connection with preparing or recording any instrument of satisfaction or deed of
reconveyance shall be chargeable to a Collection Account, any Companion Note
Custodial Account or the Distribution Account. If the Mortgage has been recorded
in the name of MERS or its designee, the applicable Master Servicer shall take
all necessary action to reflect the release of the Mortgage on the records of
MERS.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the applicable Master Servicer or the
Special Servicer shall otherwise require any Mortgage File (or any portion
thereof) or, in the case of a Serviced Non-Pooled Mortgage Loan, the related
Mortgage Note, then, upon request of such Master Servicer and receipt from such
Master Servicer of a Request for Release in the form of Exhibit C-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 C-2 attached hereto, the Trustee or, in the case of a Serviced
Non-Pooled Mortgage Loan, the related Serviced Non-Pooled Mortgage Loan
Noteholder shall release, or the Trustee shall cause any related Custodian to
release, such Mortgage File (or portion thereof) or such Mortgage Note to such
Master Servicer or the Special Servicer, as the case may be, or its designee.
Upon return of such Mortgage File (or portion thereof) to the Person from whom
it was obtained as described above, or upon the Special Servicer's delivery to
such Person of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Collection Account, the
related Companion Note Custodial Account(s) pursuant to Section 3.04 have been
or will be so deposited or (ii) such Mortgage Loan has become an REO Mortgage
Loan, a copy of the Request for Release shall be returned to the applicable
Master Servicer or the Special Servicer, as applicable, by the Person to whom it
was delivered as described above.
(c) Within five (5) Business Days of the Special Servicer's request
therefor (or, in case of an exigency, within such shorter period as is
reasonable under the circumstances), the Trustee and, in the case of the
Serviced Mortgage Loan Group, each Serviced Non-Pooled Mortgage Loan Noteholder
shall execute and deliver to the Special
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Servicer, in the form supplied to the Trustee or the Serviced Non-Pooled
Mortgage Loan Noteholder, as applicable, by the Special Servicer, any court
pleadings, requests for trustee's sale or other documents reasonably necessary,
with respect to any Mortgage Loan, to the foreclosure or trustee's sale in
respect of the related Mortgaged Property or to any legal action brought to
obtain judgment against the related Borrower 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, a
Master Servicer, the Special Servicer or any related Serviced Non-Pooled
Mortgage Loan Noteholder; provided that the Trustee and each such Serviced
Non-Pooled Mortgage Loan Noteholder may alternatively execute and deliver to the
Special Servicer, in the form supplied to the Trustee and such Serviced
Non-Pooled Mortgage Loan Noteholder, as applicable, by the Special Servicer, a
limited power of attorney issued in favor of the Special Servicer, subject to
Section 3.01(b), and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee and each Serviced
Non-Pooled Mortgage Loan Noteholder (however, neither the Trustee nor any such
Serviced Non-Pooled Mortgage Loan Noteholder shall be liable for any misuse of
such power of attorney by the Special Servicer). Together with such pleadings or
documents (or such power of attorney), the Special Servicer shall deliver to the
Trustee or such Serviced Non-Pooled Mortgage Loan Noteholder an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney) be executed by the Trustee or such Serviced Non-Pooled Mortgage Loan
Noteholder and certifying as to the reason such pleadings or documents are
required and that the execution and delivery thereof by the Trustee or such
Serviced Non-Pooled Mortgage Loan Noteholder (or by the Special Servicer on
behalf of such Person) 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. Within five (5) Business Days following receipt,
the Trustee shall forward any documents it receives related to the servicing of
the Pooled Mortgage Loans (including but not limited to any court pleadings and
other documents related to legal action involving any Mortgagor or Mortgaged
Property) to the applicable Master Servicer or the Special Servicer, as the case
may be. Upon delivery of such documents, the Trustee shall not be liable for any
loss, claim or expense related to any failure by such Master Servicer or Special
Servicer to process such documentation in a timely fashion. Any document
delivered to a Master Servicer or the Special Servicer shall be deemed to have
been duly delivered when delivered via overnight carrier to the address of such
party as set forth in Section 11.05.
(d) If from time to time, pursuant to the terms of the Mortgage Loan
Group Intercreditor Agreement and the Non-Trust Servicing Agreement related to
the Non-Trust-Serviced Pooled Mortgage Loan, and as appropriate for enforcing
the terms of, or otherwise properly servicing, such Non-Trust-Serviced Pooled
Mortgage Loan, the Non-Trust Master Servicer, the Non-Trust Special Servicer or
the holder of a related Non-Pooled Pari Passu Companion Loan requests delivery
to it of the original Mortgage Note for such Non-Trust-Serviced Pooled Mortgage
Loan, then the Trustee shall release or cause the release of such original
Mortgage Note to the requesting party or its designee. In connection with the
release of the original Mortgage Note for the Non-Trust-Serviced Pooled Mortgage
Loan in accordance with the preceding sentence, the Trustee shall obtain such
documentation as is appropriate to evidence the holding by the Non-Trust Master
Servicer, the Non-Trust Special Servicer or such holder of a related Non-Pooled
Pari Passu Companion Loan, as the case may be, of such original Mortgage Note as
custodian on behalf of and for the benefit of the Trustee.
SECTION 3.11. Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and the Fiscal Agent Regarding Back-up Servicing
Advances.
(a) As compensation for its activities hereunder, each Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including each Specially Serviced Mortgage Loan), and each
successor REO Mortgage Loan thereto, as to which it is the applicable Master
Servicer. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with December 2004) or any applicable portion thereof, the
Master Servicing Fee shall accrue at the related Master Servicing Fee Rate on
the Stated Principal Balance of such Mortgage Loan or such REO Mortgage Loan, as
the case may be, and shall be calculated on the same Interest Accrual Basis as
is applicable for such Mortgage Loan or REO Mortgage Loan, as the case may be,
and for the same number of days respecting which any related interest payment
due on such Mortgage Loan or deemed to be due on such REO Mortgage Loan is
computed under the terms of the related Mortgage Note (as such terms may be
changed or modified at
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any time following the Closing Date) and applicable law. The Master Servicing
Fee with respect to any Mortgage Loan or any REO Mortgage Loan shall cease to
accrue (but not as to any Replacement Pooled Mortgage Loan with respect thereto)
if a Liquidation Event occurs in respect thereof. Master Servicing Fees earned
with respect to any Mortgage Loan or any REO Mortgage Loan shall be payable
monthly from payments of interest on such Mortgage Loan or REO Revenues
allocable as interest on such REO Mortgage Loan, as the case may be. The
applicable Master Servicer shall be entitled to recover unpaid Master Servicing
Fees in respect of any Mortgage Loan or any REO Mortgage Loan out of the portion
any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as interest on such Mortgage Loan or REO Mortgage Loan, as the case
may be. Master Servicing Fees earned with respect to the Serviced Non-Pooled
Pari Passu Companion Loan (or any successor REO Mortgage Loan with respect
thereto) shall be payable out of the related Companion Note Custodial Account as
provided in Section 3.05(f). The Servicer Report Administrator shall be entitled
to the Servicer Report Administrator Fee (payable as provided in Section
8.05(a)) in respect of all the Pooled Mortgage Loans and successor REO Mortgage
Loans thereto. Notwithstanding any contrary provision set forth above, in no
event shall a Master Servicing Fee be payable hereunder with respect to any
Mortgage Loan that is neither a Pooled Mortgage Loan nor a Serviced Mortgaged
Loan.
PAR and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which PAR is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), and WFB and any successor holder of the Excess Servicing Fee Rights that
relate to the Serviced Mortgage Loans (and any successor REO Mortgage Loans with
respect to such Serviced Mortgage Loans) for which WFB is the applicable Master
Servicer shall be entitled, at any time, at its own expense, to transfer, sell,
pledge or otherwise assign such Excess Servicing Fee Rights in whole (but not in
part), in either case, to any Qualified Institutional Buyer or Institutional
Accredited Investor (other than a Plan), provided that no such transfer, sale,
pledge or other assignment shall be made unless (i) that transfer, sale, pledge
or other assignment is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws and
is otherwise made in accordance with the Securities Act and such state
securities laws, (ii) the prospective transferor shall have delivered to the
Depositor a certificate substantially in the form attached as Exhibit F-3A
hereto, and (iii) the prospective transferee shall have delivered to PAR or WFB,
as applicable, and the Depositor a certificate substantially in the form
attached as Exhibit F-3B hereto. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify an Excess Servicing
Fee Right under the Securities Act or any other securities law or to take any
action not otherwise required under this Agreement to permit the transfer, sale,
pledge or assignment of an Excess Servicing Fee Right without registration or
qualification. PAR, WFB and each holder of an Excess Servicing Fee Right
desiring to effect a transfer, sale, pledge or other assignment of such Excess
Servicing Fee Right shall, and each of PAR and WFB hereby agrees, and each such
holder of an Excess Servicing Fee Right by its acceptance of such Excess
Servicing Fee Right shall be deemed to have agreed, in connection with any
transfer of such Excess Servicing Fee Right effected by such Person, to
indemnify the Certificateholders, the Trust, the Depositor, the Underwriters,
the Certificate Administrator, the Trustee, any Fiscal Agent, the Master
Servicers, the Certificate Registrar and the Special Servicer against any
liability that may result if such transfer is not exempt from registration
and/or qualification under the Securities Act or other applicable federal and
state securities laws or is not made in accordance with such federal and state
laws or in accordance with the foregoing provisions of this paragraph. By its
acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed
to have agreed not to use or disclose such information in any manner that could
result in a violation of any provision of the Securities Act or other applicable
securities laws or that would require registration of such Excess Servicing Fee
Right or any Non-Registered Certificate pursuant to the Securities Act. From
time to time following any transfer, sale, pledge or assignment of an Excess
Servicing Fee Right, the Person then acting as the Master Servicer with respect
to the Serviced Mortgage Loan or successor REO Mortgage Loan with respect
thereto to which the Excess Servicing Fee Right relates, shall pay, out of each
amount paid to such Master Servicer as Master Servicing Fees with respect to
such Mortgage Loan or REO Mortgage Loan, as the case may be, the related Excess
Servicing Fees to the holder of such Excess Servicing Fee Right within one
Business Day following the payment of such Master Servicing Fees to such Master
Servicer, in each case in accordance with payment instructions provided by such
holder in writing to such Master Servicer. The holder of an Excess Servicing Fee
Right shall not have any rights under this Agreement except as set forth in the
preceding sentences of this paragraph. None of the Certificate Administrator,
the other Master Servicer,
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the Certificate Registrar, the Depositor, the Special Servicer, the Trustee or
the Tax Administrator shall have any obligation whatsoever regarding payment of
the Excess Servicing Fee or the assignment or transfer of the Excess Servicing
Fee Right.
A Master Servicer's right to receive the Master Servicing Fees (and, in
the case of the Servicer Report Administrator, the Servicer Report Administrator
Fees) to which it is entitled may not be transferred in whole or in part except
in connection with the transfer of all of such Master Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein, including as contemplated by the prior paragraph.
(b) Each Master Servicer shall be entitled to receive the following
items as additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Pooled Mortgage Loan for which such Master Servicer
is the applicable Master Servicer or any successor REO Mortgage Loan with
respect thereto, to the extent that such Net Default Charges are payable to
such Master Servicer under Section 3.28 and any and all application and
processing fees for consents to approvals of assignments and assumptions,
further encumbrances or other lender approvals, to the extent actually
collected during the related Collection Period with respect to Performing
Serviced Mortgage Loans for which such Master Servicer is the applicable
Master Servicer;
(ii) (x) 50% of assumption fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums, Yield Maintenance Charges and application and processing fees), in
each case to the extent actually collected during the related Collection
Period with respect to Performing Serviced Mortgage Loans for which such
Master Servicer is the applicable Master Servicer and paid in connection
with a consent, approval or other action that the applicable Master Servicer
is not permitted to take in the absence of the consent or approval (or
deemed consent or approval) of the Special Servicer under the other
provisions of this Agreement and (y) 100% of assumption fees, modification
fees, extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums, Yield Maintenance Charges and application
and processing fees), in each case to the extent actually collected during
the related Collection Period with respect to Performing Serviced Mortgage
Loans for which such Master Servicer is the applicable Master Servicer and
paid in connection with a consent, approval or other action that such Master
Servicer is permitted to take in the absence of the consent or approval (or
deemed consent or approval) of the Special Servicer under the other
provisions of this Agreement;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other loan
processing fees actually paid by the Borrowers under Serviced Mortgage Loans
for which such Master Servicer is the applicable Master Servicer;
(iv) any and all Prepayment Interest Excesses collected with
respect to the Pooled Mortgage Loans for which such Master Servicer is the
applicable Master Servicer;
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to any such Investment Account for each Collection Period and,
further, in the case of a Servicing Account or Reserve Account, only to the
extent such interest or other income is not required to be paid to any
Borrower under applicable law or under the related Mortgage).
To the extent that any of the amounts described in clauses (i) through
(iv) in the preceding paragraph are collected by the Special Servicer, the
Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
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(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive monthly the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Mortgage Loan thereto that
relates to an Administered REO Property. As to each such Specially Serviced
Mortgage Loan and REO Mortgage Loan, for any particular calendar month or
applicable portion thereof, the Special Servicing Fee shall accrue at the
Special Servicing Fee Rate on the Stated Principal Balance of such Specially
Serviced Mortgage Loan or such REO Mortgage Loan, as the case may be, and shall
be calculated on the same Interest Accrual Basis as is applicable for such
Specially Serviced Mortgage Loan or REO Mortgage Loan, as the case may be, and
for the same number of days respecting which any related interest payment due on
such Specially Serviced Mortgage Loan or deemed to be due on such REO Mortgage
Loan is computed under the terms of the related Mortgage Note (as such terms may
be changed or modified at any time following the Closing Date) and applicable
law. The Special Servicing Fee with respect to any Specially Serviced Mortgage
Loan or REO Mortgage Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or, in the case of a Specially Serviced Mortgage
Loan, as of the date it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees with respect to Pooled Mortgage Loans that are Specially
Serviced Mortgage Loans and REO Pooled Mortgage Loans shall be payable (pursuant
to Section 3.05(a)) monthly first out of related Liquidation Proceeds, Insurance
Proceeds and/or Condemnation Proceeds, if any, and then out of general
collections on the Pooled Mortgage Loans and any REO Properties on deposit in
the applicable Collection Account and earned but unpaid Special Servicing Fees
with respect to any Serviced Non-Pooled Mortgage Loan or any successor REO
Mortgage Loan with respect thereto shall be payable in accordance with the
related Mortgage Loan Group Intercreditor Agreement and solely out of the
proceeds of such Serviced Non-Pooled Mortgage Loan.
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Serviced Mortgage Loan that is a Corrected Mortgage Loan, unless the basis on
which such Serviced Mortgage Loan became a Corrected Mortgage Loan was the
remediation of a circumstance or condition relating to the related Pooled
Mortgage Loan Seller's obligation to repurchase such Mortgage Loan pursuant to
the related Pooled Mortgage Loan Purchase Agreement, as applicable, in which
case, if such Mortgage Loan is repurchased within the Initial Resolution Period
(and, if applicable any Resolution Extension Period as is permitted under
Section 2.03) no Workout Fee will be payable from or based upon the receipt of,
any Purchase Price paid by the related Pooled Mortgage Loan Seller in
satisfaction of such repurchase obligation. As to each such Corrected Mortgage
Loan, the Workout Fee shall be payable out of, and shall be calculated by
application of the Workout Fee Rate to, each payment of interest (other than
Post-ARD Additional Interest and Default Interest) and principal received from
the related Borrower on such Corrected Mortgage Loan for so long as it remains a
Corrected Mortgage Loan and any Workout Fees earned with respect to any Serviced
Non-Pooled Mortgage Loan or any successor REO Mortgage Loan with respect thereto
shall be payable in accordance with the related Mortgage Loan Group
Intercreditor Agreement and solely out of the proceeds of such Serviced
Non-Pooled Mortgage Loan. The Workout Fee with respect to any Corrected Mortgage
Loan will cease to be payable if such Corrected Mortgage Loan again becomes a
Specially Serviced Mortgage Loan or if the related Mortgaged Property becomes an
REO Property; provided that a new Workout Fee would become payable if and when
such Serviced Mortgage Loan again became a Corrected Mortgage Loan after having
again become a Specially Serviced Mortgage Loan. If the Special Servicer is
terminated or resigns, the Special Servicer shall retain the right (and the
applicable successor Special Servicer shall not have the right) to receive any
and all Workout Fees payable in respect of (i) any Serviced Mortgage Loans
serviced by the Special Servicer that became Corrected Mortgage Loans during the
period that it acted as Special Servicer and that were still Corrected Mortgage
Loans at the time of such termination or resignation and (ii) unless the Special
Servicer was terminated for cause (in which case only clause (i) above shall
apply), any Serviced Mortgage Loans that constitute Specially Serviced Mortgage
Loans for which the Special Servicer has resolved the circumstances and/or
conditions causing any such Mortgage Loan to be a Specially Serviced Mortgage
Loan such that the related Borrower has made, as of the date of such termination
or resignation, at least one timely Monthly Payment required by the terms of the
workout and such Mortgage Loan otherwise meets the requirements of a Corrected
Mortgage Loan, with the Workout Fee with respect to such Mortgage Loan payable
only after such requirements have been satisfied; provided, however, that (A) in
either case no other event has occurred as of the time of the Special Servicer's
termination or resignation that would otherwise cause such Mortgage Loan to
again become a Specially Serviced Mortgage Loan and (B) in the case of any
Specially Serviced Mortgage Loan described in clause (ii) of this sentence, the
terminated Special Servicer shall immediately deliver the related Servicing File
to the applicable Master Servicer, and the
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applicable Master Servicer shall (without further compensation) monitor that all
conditions precedent to such Mortgage Loan's becoming a Corrected Mortgage Loan
are satisfied and, further, shall immediately transfer such Servicing File to
the new Special Servicer if and when it becomes apparent to the applicable
Master Servicer that such conditions precedent will not be satisfied.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan as to
which it receives any full, partial or discounted payoff from the related
Borrower and with respect to each Serviced Mortgage Loan that is a Specially
Serviced Mortgage Loan and Administered REO Property as to which it receives any
Condemnation Proceeds, Insurance Proceeds or Liquidation Proceeds (other than in
connection with (A) the purchase of any such Specially Serviced Mortgage Loan by
the Special Servicer or the Majority Controlling Class Certificateholder(s)
pursuant to or as contemplated by Section 3.18, (B) the purchase or other
acquisition of any such Specially Serviced Mortgage Loan or Administered REO
Property by any Controlling Class Certificateholder(s), the Sole
Certificateholder(s), a Master Servicer or the Special Servicer pursuant to
Section 9.01, (C) the repurchase or replacement of any such Specially Serviced
Mortgage Loan or Administered REO Property by a Pooled Mortgage Loan Seller
pursuant to the related Pooled Mortgage Loan Purchase Agreement as a result of a
Material Breach or Material Document Defect, (D) the purchase of any such
Specially Serviced Mortgage Loan or Administered REO Property by any other
creditor of the related Borrower or any of its Affiliates or other equity
holders pursuant to a right under the related Mortgage Loan Documents (provided
that such right is exercised within the period and in the manner required under
such Mortgage Loan Documents and the payment of the Liquidation Fee would not
otherwise be covered by the price to be paid by such creditor), or (E) any
Liquidation Event involving the Non-Trust-Serviced Pooled Mortgage Loan or any
related REO Property (including any purchase of such Mortgage Loan by the holder
of any Non-Trust-Serviced Non-Pooled Pari Passu Companion Loan in accordance
with the related Mortgage Loan Group Intercreditor Agreement and the Non-Trust
Servicing Agreement)). As to each such Specially Serviced Mortgage Loan or
Administered REO Property, the Liquidation Fee shall be payable out of, and
shall be calculated by application of the Liquidation Fee Rate to, any such
full, partial or discounted payoff, Condemnation Proceeds, Insurance Proceeds
and/or Liquidation Proceeds received or collected in respect thereof (other than
any portion of such payment or proceeds that represents Post-ARD Additional
Interest or Default Charges). The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan will not be payable if such Specially Serviced
Mortgage Loan becomes a Corrected Mortgage Loan.
A Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement and
except as otherwise expressly provided herein.
(d) The Special Servicer shall be entitled to receive the following
items as additional special servicing compensation (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges actually collected with
respect to any Serviced Pooled Mortgage Loan or any successor REO Mortgage
Loan with respect thereto, to the extent that such Net Default Charges are
payable to the Special Servicer under Section 3.28; and any and all
assumption fees, assumption application and processing fees, modification
fees, extension fees, consent fees, release fees, waiver fees, fees paid in
connection with defeasance and earn-out fees or other similar fees
(excluding Prepayment Premiums and Yield Maintenance Charges), to the extent
actually collected during the related Collection Period with respect to any
Specially Serviced Mortgage Loans or any REO Mortgage Loans (other than any
Non-Trust-Serviced Mortgage Loan or any successor REO Property with respect
thereto);
(ii) 50% of any assumption fees, modification fees, extension
fees, consent fees, release fees, waiver fees, fees paid in connection with
defeasance and earn-out fees or other similar fees (excluding Prepayment
Premiums, Yield Maintenance Charges and application and processing fees), in
each case to the extent actually collected during the related Collection
Period with respect to Performing Serviced Mortgage Loans in connection with
a consent, approval or other action that the applicable Master Servicer is
not permitted
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to take in the absence of the consent or approval (or deemed consent or
approval) of the Special Servicer under the other provisions of this
Agreement; and
(iii) interest or other income earned on deposits in any REO
Account maintained by the Special Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to such REO Account for each Collection Period).
To the extent that any of the amounts described in clauses (i) and (ii)
of the preceding paragraph are collected by a Master Servicer, such Master
Servicer shall promptly pay such amounts to the Special Servicer and shall not
be required to deposit such amounts in such Master Servicer's Collection Account
pursuant to Section 3.04.
(e) The Master Servicers and the Special Servicer shall each be
required (subject to Section 3.11(h) below) to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including payment of any amounts due and owing to any of Sub-Servicers retained
by it (including any termination fees) and the premiums for any blanket policy
or the standby fee or similar premium, if any, for any master force placed
policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)), if and to the extent such expenses are not payable directly out of any
Collection Account, any Companion Note Custodial Account or any Servicing
Account, Reserve Account or REO Account, and none of the Master Servicers or the
Special Servicer shall be entitled to reimbursement for any such expense
incurred by it except as expressly provided in this Agreement. If either Master
Servicer is required to make any Servicing Advance hereunder at the discretion
of the Special Servicer in accordance with Section 3.19 or otherwise, the
Special Servicer shall promptly provide such Master Servicer with such
documentation regarding the subject Servicing Advance as such Master Servicer
may reasonably request.
(f) If a Master Servicer or, as contemplated by Section 3.19, the
Special Servicer is required under this Agreement to make a Servicing Advance,
but fails to do so within ten (10) days after such Advance is required to be
made, the Trustee shall, if it has actual knowledge of such failure on the part
of such Master Servicer or the Special Servicer, as the case may be, give notice
of such failure to the defaulting party. If such Advance is not made by such
Master Servicer or the Special Servicer, as the case may be, within one Business
Day after receipt of such notice, then (subject to Section 3.11(h) below) the
Trustee (or, if the Trustee fails to make such Advance, the Fiscal Agent) shall
make such Advance. If the Fiscal Agent makes any such Servicing Advance, the
Trustee shall be deemed not to be in default under this Agreement for failing to
do so.
(g) The Master Servicers, the Special Servicer, the Trustee and the
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding (it being acknowledged that Advance Interest shall not accrue on
Unliquidated Advances related to prior Servicing Advances). Such interest with
respect to any Servicing Advances shall be payable: (i) first, in accordance
with Sections 3.05 and 3.28, out of any Default Charges subsequently collected
on or in respect of the particular Pooled Mortgage Loan or REO Pooled Mortgage
Loan as to which such Servicing Advance relates; and (ii) then, after such
Servicing Advance is reimbursed, but only if and to the extent that such Default
Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
applicable Master Servicer's Collection Account or, as and to the extent
contemplated by the second paragraph of Section 3.05(a), the other Master
Servicer's Collection Account (subject to, however, the proviso at the end of
the first paragraph of subsection (I) of Section 3.05(a)). The applicable Master
Servicer shall (subject to the operation of Section 3.05(a)(II)) reimburse
itself, the Special Servicer, the Trustee or the Fiscal Agent, as appropriate,
for any Servicing Advance made by any such Person with respect to any Mortgage
Loan or REO Property as to which such Master Servicer is the applicable Master
Servicer as soon as practicable after funds available for such purpose are
deposited in such Master Servicer's Collection Account or a Companion Note
Custodial Account, as applicable.
(h) Notwithstanding anything to the contrary set forth herein, none of
the Master Servicers, the Special Servicer, the Trustee or the Fiscal Agent
shall be required to make any Servicing Advance that would, if made, constitute
a Nonrecoverable Servicing Advance. The determination by any Person with an
obligation hereunder to make
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Servicing Advances 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 by such Person in its reasonable, good faith
judgment. In making such recoverability determination, such Person will be
entitled to consider (among other things) only the obligations of the Borrower
under the terms of the related Mortgage Loan as it may have been modified, to
consider (among other things) the related Mortgaged Properties in their "as is"
or then current conditions and occupancies, as modified by such party's
assumptions regarding the possibility and effects of future adverse change with
respect to such Mortgaged Properties, to estimate and consider (among other
things) future expenses and to estimate and consider (among other things) the
timing of recoveries. In addition, any such Person may update or change its
recoverability determinations at any time and may obtain any analysis,
Appraisals or market value estimates or other information in the possession of
the Special Servicer for such purposes. Any determination by any Person with an
obligation hereunder to make Servicing Advances that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced by
an Officer's Certificate delivered promptly to the Depositor, the Certificate
Administrator, the Trustee (unless it is the Person making such determination),
the Special Servicer and the Controlling Class Representative, setting forth the
basis for such determination, accompanied by a copy of any Appraisal of the
related Mortgaged Property or REO Property performed within the 12 months
preceding such determination by a Qualified Appraiser, and, if such reports were
used by the Master Servicer, the Trustee or the Fiscal Agent to determine that
any Servicing Advance is or would be nonrecoverable, further accompanied by any
other information, including engineers' reports, environmental surveys or
similar reports, that the Person making such determination may have obtained.
Notwithstanding the foregoing, absent bad faith, any such determination as to
the recoverability of any Servicing Advance shall be conclusive and binding on
the Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall
be entitled to conclusively rely on any determination of nonrecoverability that
may have been made by the applicable Master Servicer or the Special Servicer or,
if appropriate, any party under the Non-Trust Servicing Agreement (in the case
of the Non-Trust-Serviced Pooled Mortgage Loan) with respect to a particular
Servicing Advance for any Mortgage Loan or REO Property, and the applicable
Master Servicer and the Special Servicer shall each be entitled to conclusively
rely on any determination of nonrecoverability that may have been made by the
other such party or, if appropriate, any party under the Non-Trust Servicing
Agreement (in the case of the Non-Trust-Serviced Pooled Mortgage Loan) with
respect to a particular Servicing Advance for any Mortgage Loan or REO Property.
The Special Servicer shall promptly furnish any party required to make Servicing
Advances hereunder with any information in its possession regarding the
Specially Serviced Pooled Mortgage Loans and REO Properties as such party
required to make Servicing Advances may reasonably request. A copy of any such
Officer's Certificate (and accompanying information) of a Master Servicer shall
also be delivered promptly to the Special Servicer, a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the Master Servicer for the subject Mortgage Loan or REO
Property, and a copy of any such Officer's Certificates (and accompanying
information) of the Trustee or the Fiscal Agent shall also be promptly delivered
to the Certificate Administrator, the Controlling Class Representative, the
Special Servicer, the Master Servicer for the subject Mortgage Loan or REO
Property and, if affected, the related Non-Pooled Noteholder. The applicable
Master Servicer shall consider Unliquidated Advances in respect of prior
Servicing Advances as outstanding Advances for purposes of recoverability
determinations as if such Unliquidated Advance were a Servicing Advance.
The Special Servicer for each Pooled Mortgage Loan shall also be
entitled to make a determination (subject to the same standards and procedures
that apply in connection with a determination by the applicable Master Servicer)
to the effect that a prior Servicing Advance (or Unliquidated Advance in respect
thereof) previously made hereunder by the applicable Master Servicer (or, if
applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable
Servicing Advance or that any proposed Servicing Advance by the applicable
Master Servicer (or, if applicable, the Trustee or the Fiscal Agent), if made,
would constitute a Nonrecoverable Servicing Advance, in which case such
Servicing Advance shall constitute a Nonrecoverable Servicing Advance for all
purposes of this Agreement.
(i) Notwithstanding anything to the contrary set forth herein, the
applicable Master Servicer may (and, at the direction of the Special Servicer if
a Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan or an
Administered REO Property is involved, shall) pay directly out of such Master
Servicer's Collection Account any servicing expense that, if paid by the
applicable Master Servicer or the Special Servicer, would constitute a
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Nonrecoverable Servicing Advance for the subject Mortgage Loan or REO Property;
provided that (A) it shall be a condition to such payment that the applicable
Master Servicer (or the Special Servicer, if a Specially Serviced Mortgage Loan
or an Administered REO Property is involved) has determined in accordance with
the Servicing Standard that making such payment is in the best interests of the
Certificateholders and, if applicable, the Serviced Non-Pooled Mortgage Loan
Noteholders (as a collective whole), as evidenced by an Officer's Certificate
delivered promptly to the Depositor, the Certificate Administrator, the Trustee
and the Controlling Class Representative and, if affected, the Serviced
Non-Pooled Mortgage Loan Noteholders, setting forth the basis for such
determination and accompanied by any information that such Person may have
obtained that supports such determination; (B) if such servicing expense relates
to the Serviced Mortgage Loan Group, the payment of such expense shall be
subject to the proviso at the end of the first paragraph of subsection (I) of
Section 3.05(a); and (C) such servicing expense shall be deemed to constitute a
Nonrecoverable Advance for purposes of subsection (II)(iv) of Section 3.05(a)
and the definition of "Principal Distribution Amount" and the terms and
conditions set forth in such subsection that are applicable to Nonrecoverable
Advances shall apply to such servicing expense. A copy of any such Officer's
Certificate (and accompanying information) of a Master Servicer shall also be
delivered promptly to the Controlling Class Representative (and, if the Serviced
Mortgage Loan Group is involved, any affected Serviced Non-Pooled Mortgage Loan
Noteholder(s)) and the Special Servicer, and a copy of any such Officer's
Certificate (and accompanying information) of the Special Servicer shall also be
promptly delivered to the applicable Master Servicer and the Controlling Class
Representative (and, if the Serviced Mortgage Loan Group is involved, any
affected Serviced Non-Pooled Mortgage Loan Noteholder(s)).
SECTION 3.12. Property Inspections; Collection of Financial Statements.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property securing a Specially Serviced
Mortgage Loan as soon as practicable (but in any event not later than 60 days)
after the subject Serviced Mortgage Loan becomes a Specially Serviced Mortgage
Loan (and the Special Servicer shall continue to perform or cause to be
performed a physical inspection of the subject Mortgaged Property at least once
per calendar year thereafter for so long as the subject Serviced Mortgage Loan
remains a Specially Serviced Mortgage Loan or if such Mortgaged Property becomes
an REO Property); provided that the Special Servicer shall be entitled to
reimbursement of the reasonable and direct out-of-pocket expenses incurred by it
in connection with each such inspection as Servicing Advances and otherwise as
contemplated by Section 3.05(a). The applicable Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property (other
than the Mortgaged Property securing the Non-Trust-Serviced Pooled Mortgage
Loan, Mortgaged Properties related to Specially Serviced Mortgage Loans and REO
Properties), every calendar year beginning in 2005, or every second calendar
year beginning in 2005 if the unpaid principal balance of the related Serviced
Pooled Mortgage Loan is less than $2,000,000; provided that with respect to any
Serviced Pooled Mortgage Loan (other than a Specially Serviced Pooled Mortgage
Loan) that has an unpaid principal balance of less than $2,000,000 and has been
placed on the CMSA Servicer Watch List, the applicable Master Servicer, at its
own expense, shall, at the request of the Controlling Class Representative,
inspect or cause to be inspected the related Mortgaged Property every calendar
year beginning in 2005 so long as such Mortgage Loan continues to be on the CMSA
Servicer Watch List; and provided, further, that neither Master Servicer will be
obligated to inspect any particular Mortgaged Property during any one-year or
two-year, as applicable, period contemplated above in this sentence, if the
Special Servicer has already done so during that period pursuant to the
preceding sentence. Each of the Master Servicers and the Special Servicer shall
prepare (and, promptly following preparation, if there has been a material
adverse change in the condition of the subject Mortgaged Property or REO
Property, as applicable), deliver to or make available (on such Master
Servicer's or Special Servicer's internet website) to the Trustee, the
Controlling Class Representative, the applicable Master Servicer or the Special
Servicer, and the Rating Agencies) a written report of each such inspection
performed by it or on its behalf that sets forth in detail the condition of the
subject Mortgaged Property and that specifies the occurrence or existence of:
(i) any vacancy in the Mortgaged Property that is, in the reasonable judgment of
such Master Servicer or Special Servicer (or its respective designee), as the
case may be, material and is evident from such inspection, (ii) any abandonment
of the Mortgaged Property, (iii) any change in the condition or value of the
Mortgaged Property that is, in the reasonable judgment of such Master Servicer
or Special Servicer (or its respective designee), as the case may be, material
and is evident from such inspection, (iv) any waste on or deferred maintenance
in respect of the Mortgaged Property that is evident from such inspection or (v)
any capital improvements made that are evident from such
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inspection. Such report may be in the form of the standard property inspection
report (or such other form for the presentation of such information) as may from
time to time be recommended by the CMSA for commercial mortgage-backed
securities transactions generally. Each of the Master Servicers and the Special
Servicer shall deliver to the Controlling Class Representative and, upon
request, to the Certificate Administrator and the Trustee a copy (or image in
suitable electronic media) of each such written report prepared by it, in each
case within 30 days following the request (or, if later or if request is not
required, within 30 days following the later of completion of the related
inspection if the inspection is performed by the applicable Master Servicer or
the Special Servicer, as appropriate, or receipt of the related inspection
report if the inspection is performed by a third party). The copy of each such
inspection report that is delivered by a Master Servicer or the Special Servicer
to the Controlling Class Representative shall be imaged with the ARCap Naming
Convention for Electronic File Delivery.
(b) Commencing with respect to the calendar year ended December 31,
2004, the Special Servicer, in the case of any Specially Serviced Mortgage Loan,
and the applicable Master Servicer, in the case of each Performing Serviced
Mortgage Loan, shall make reasonable efforts to collect promptly from each
related Borrower quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and quarterly and annual financial
statements of such Borrower, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage Loan Documents. The applicable
Master Servicer shall deliver images in suitable electronic media (and labeled
according to the ARCap Naming Convention for Electronic File Delivery) of all of
the foregoing items so collected or obtained by it to the Persons and in the
time and manner set forth in Section 4.02(d). In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
images in suitable electronic media (and labeled according to the ARCap Naming
Convention for Electronic File Delivery) of all of the foregoing items so
collected or obtained by it to the applicable Master Servicer and the
Controlling Class Representative, within 30 days of its receipt thereof. In
addition, with respect to the calendar quarter ended on September 30, 2004,
notwithstanding that the Master Servicers are not required to make the
collection efforts otherwise described above, each Master Servicer shall deliver
to the Controlling Class Representative any operating statements, budgets, rent
rolls and/or financial statements that are nonetheless received by such Master
Servicer, in each case within 30 days of its receipt thereof.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicers and the Special Servicer shall deliver to
the Trustee, the Certificate Administrator, the Depositor, the Underwriters, the
Controlling Class Representative and (only if such delivery is being made by the
applicable Master Servicer or the Special Servicer for the Serviced Mortgage
Loan Group) the respective Serviced Non-Pooled Mortgage Loan Noteholder(s), on
or before March 15 (except that such date shall be May 1st for every year after
notice is provided by (i) the Certificate Administrator and (ii) each
counterpart to the Certificate Administrator in any securitization of any of the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan and the Lincoln Square
Non-Pooled Pari Passu Companion Loans, of its filing of a Form 15 relating to
the automatic suspension of reporting in respect of the Trust under the Exchange
Act as provided for in Section 8.15(a) (or, in the case of any securitization of
the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan and the Lincoln Square
Non-Pooled Pari Passu Companion Loans, any substantially similar provision in
the pooling and servicing agreement related to such securitization, provided
that a copy of such agreement has been delivered to the parties hereto unless
such party was a party to such other pooling and servicing agreement)) of each
year, beginning in 2005, an Officer's Certificate (the "Annual Performance
Certification") stating, as to the signer thereof, that (i) a review of the
activities of such 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, such 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) such Master
Servicer or the Special Servicer, as the case may be, has received no notice
regarding the qualification, or challenging the status, of any REMIC Pool as a
REMIC or either Grantor Trust Pool as a Grantor Trust from the IRS or any other
governmental agency or body (or, if it has received any such notice, specifying
the details thereof).
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SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 (except that such date shall be May 1st for every
year after notice is provided by (i) the Certificate Administrator and (ii) each
counterpart to the Certificate Administrator in any securitization of any of the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan and the Lincoln Square
Non-Pooled Pari Passu Companion Loans, of its filing of a Form 15 relating to
the automatic suspension of reporting in respect of the Trust under the Exchange
Act as provided for in Section 8.15(a) (or, in the case of any securitization of
the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan and the Lincoln Square
Non-Pooled Pari Passu Companion Loans, any substantially similar provision in
the pooling and servicing agreement related to such securitization, provided
that a copy of such agreement has been delivered to the parties hereto unless
such party was a party to such other pooling and servicing agreement)) of each
year, beginning in 2005, each of the Master Servicers and the Special Servicer,
at its expense, shall cause a firm of independent public accountants that is a
member of the American Institute of Certified Public Accountants to render and
to deliver (or shall itself deliver such a statement that has been rendered) a
statement (the "Annual Accountants' Report") to the Trustee, the Certificate
Administrator, the Depositor, the Underwriters, the Controlling Class
Representative and (only if such delivery is being made with respect to the
applicable Master Servicer or the Special Servicer for the Serviced Mortgage
Loan Group) the respective Serviced Non-Pooled Mortgage Loan Noteholder(s), to
the effect that such firm has examined the servicing operations of such Master
Servicer or the Special Servicer, as the case may be, for the previous calendar
year and that, on the basis of such examination, conducted substantially in
compliance with USAP, such firm confirms that such Master Servicer or the
Special Servicer, as the case may be, has complied during such previous calendar
year with the minimum servicing standards (to the extent applicable to
commercial and multifamily mortgage loans) identified in USAP in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, USAP requires it to report. In rendering its report
such firm may rely, as to matters relating to the direct servicing of
securitized commercial and multifamily mortgage loans by sub-servicers, upon
comparable reports of firms of independent certified public accountants rendered
on the basis of examinations conducted in accordance with the same standards
(rendered within one year of such report) with respect to those sub-servicers.
SECTION 3.15. Access to Information.
(a) Each of the Master Servicers and the Special Servicer shall afford
to the OTS, the FDIC, any other banking or insurance regulatory authority that
may exercise authority over any Certificateholder or Certificate Owner, the
Certificate Administrator, the Trustee, the Fiscal Agent, the Depositor, each
Underwriter, each Rating Agency, the Controlling Class Representative and each
Serviced Non-Pooled Mortgage Loan Noteholder, access to any records regarding
the Mortgage Loans (or, in the case of a Serviced Non-Pooled Mortgage Loan
Noteholders, only the related Serviced Non-Pooled Mortgage Loans) and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law, the terms of the related Mortgage Loan Documents or
contract entered into prior to the Closing Date or to the extent such
information is subject to a privilege under applicable law to be asserted on
behalf of the Certificateholders. At the election of the applicable Master
Servicer, such access may be afforded to the Certificate Administrator, the
Trustee, the Fiscal Agent, the Depositor, each Rating Agency, the Controlling
Class Representative and each Serviced Non-Pooled Mortgage Loan Noteholder, by
the delivery of copies of information as requested by such Person and the
applicable Master Servicer shall be permitted to require payment of a sum
sufficient to cover the reasonable out-of-pocket costs incurred by it in making
such copies (other than with respect to the Rating Agencies); provided, however,
that the applicable Master Servicer shall be entitled to require such payment
from the Controlling Class Representative in any single calendar month only to
the extent that such costs in such month exceed $100.00. Such access shall
otherwise be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the particular Master
Servicer or Special Servicer, as the case may be, designated by it.
(b) In connection with providing access to information pursuant to
clause (a) of this Section 3.15, each of the Master Servicers and the Special
Servicer may (i) affix a reasonable disclaimer to any information provided by it
for which it is not the original source (without suggesting liability on the
part of any other party hereto); (ii) affix to any information provided by it a
reasonable statement regarding securities law restrictions on such information
and/or condition access to information on the execution of a reasonable
confidentiality agreement; (iii) withhold access to confidential information or
any intellectual property; and (iv) withhold access to items of information
contained in the
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Servicing File for any Serviced Mortgage Loan if the disclosure of such items is
prohibited by applicable law or the provisions of any related Mortgage Loan
Documents or would constitute a waiver of the attorney-client privilege.
(c) Upon the request of the Controlling Class Representative made not
more frequently than once a month during the normal business hours of the Master
Servicers and the Special Servicer, each of the Master Servicers and the Special
Servicer shall, without charge, make a knowledgeable Servicing Officer available
either by telephone (with Servicing Officers of each of the Master Servicers and
Special Servicer participating simultaneously if the Controlling Class
Representative so requests) or, at the option of the Controlling Class
Representative if it provides reasonable advance notice, at the office of such
Servicing Officer, to verbally answer questions from the Controlling Class
Representative regarding the performance and servicing of the Serviced Mortgage
Loans and/or Administered REO Properties for which such Master Servicer or the
Special Servicer, as the case may be, is responsible.
(d) Notwithstanding any provision of this Agreement to the contrary,
the failure of a Master Servicer or the Special Servicer to disclose any
information otherwise required to be disclosed by it pursuant to this Agreement
shall not constitute a breach of this Agreement to the extent that such Master
Servicer or the Special Servicer, as the case may be, determines, in its
reasonable and good faith judgment consistent with the Servicing Standard, that
such disclosure would violate applicable law or any provision of a Mortgage Loan
Document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
(e) None of the Master Servicers or the Special Servicer shall be
liable for providing, disseminating or withholding information in accordance
with the terms of this Agreement. In addition to their other rights hereunder,
each of the Master Servicers and the Special Servicer (and their respective
employees, attorneys, officers, directors and agents) shall, in each case, be
indemnified by the Trust Fund for any claims, losses or expenses arising from
any such provision, dissemination or withholding.
SECTION 3.16. Title to Administered REO Property; REO Account.
(a) If title to any Administered 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, in the case of the Serviced Mortgage Loan Group,
also the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), or, subject
to Section 3.09(b), to a single member limited liability company of which the
Trust is the sole member, which limited liability company is formed or caused to
be formed by the Special Servicer at the expense of the Trust (or, in the case
of any REO Property related to a Pooled Mortgage Loan that is part of the
Serviced Mortgage Loan Group, the Trust and the related Serviced Non-Pooled
Mortgage Loan Noteholders) for the purpose of taking title to one or more REO
Properties pursuant to this Agreement. Any such limited liability company formed
by the Special Servicer shall be a manager-managed limited liability company,
with the Special Servicer to serve as the initial manager to manage the property
of the limited liability company, including any applicable Administered REO
Property, in accordance with the terms of this Agreement as if such property was
held directly in the name of the Trust or Trustee under this Agreement. The
Special Servicer shall sell any Administered REO Property in accordance with
Section 3.18 by the end of the third calendar year following the year in which
the Trust acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies, more
than 60 days prior to the expiration of such liquidation period, and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
to the effect that the holding by the Trust of such REO Property subsequent to
the end of the third calendar year following the year in which such acquisition
occurred will not result in an Adverse REMIC Event with respect to any REMIC
Pool or an Adverse Grantor Trust Event with respect to either Grantor Trust
Pool. Regardless of whether the Special Servicer applies for or is granted the
REO Extension contemplated by clause (i) of the immediately preceding sentence
or obtains the Opinion of Counsel referred to in clause (ii) of such sentence,
the Special Servicer shall act in accordance with the Servicing Standard to
liquidate the subject Administered REO Property on a timely basis. If the
Special Servicer is granted such REO
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Extension or obtains such Opinion of Counsel with respect to any Administered
REO Property, the Special Servicer shall (i) promptly forward a copy of such REO
Extension or Opinion of Counsel to the Trustee, and (ii) sell the subject
Administered REO Property within such extended period as is permitted by such
REO Extension or contemplated by such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in connection with its applying for
and being granted the REO Extension contemplated by clause (i) of the third
preceding sentence or its obtaining the Opinion of Counsel contemplated by
clause (ii) of the third preceding sentence, and for the creation of and the
operating of a limited liability company, shall be covered by, and be
reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected
and received by it in connection with any Administered REO Property separate and
apart from its own funds and general assets. If any REO Acquisition occurs in
respect of any Mortgaged Property securing a Serviced Mortgage Loan, then the
Special Servicer shall establish and maintain one or more accounts
(collectively, an "REO Account"), to be held on behalf of the Trustee in trust
for the benefit of the Certificateholders (or, in the case of any REO Property
related to the Serviced Mortgage Loan Group, on behalf of both the
Certificateholders and the related Serviced Non-Pooled Mortgage Loan
Noteholder(s)), as a collective whole, for the retention of revenues and other
proceeds derived from such Administered REO Property. Each account that
constitutes an REO Account shall be an Eligible Account. The Special Servicer
shall deposit, or cause to be deposited, in its REO Account, within one Business
Day following receipt, all REO Revenues, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds received in respect of an Administered REO
Property. Funds in an REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer is authorized to pay out of
related Liquidation Proceeds, Insurance Proceeds and/or Condemnation Proceeds,
if any, any Liquidation Expenses incurred in respect of an Administered REO
Property and outstanding at the time such proceeds are received, as well as any
other items that otherwise may be paid by the applicable Master Servicer out of
such Liquidation Proceeds as contemplated by Section 3.05(a). The Special
Servicer shall be entitled to make withdrawals from its REO Account to pay
itself, as Additional Special Servicing Compensation, interest and investment
income earned in respect of amounts held in such REO Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to such REO Account for any Collection Period). The Special
Servicer shall give notice to the other parties hereto of the location of its
REO Account when first established and of the new location of such REO Account
prior to any change thereof.
(c) The Special Servicer shall withdraw from its REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in such REO Account relating to such Administered REO Property.
Monthly within two (2) Business Days following the end of each Collection
Period, the Special Servicer shall withdraw from its REO Account and deposit
into the applicable Master Servicer's Collection Account, or deliver to the
applicable Master Servicer for deposit into such Collection Account, the
aggregate of all amounts received in respect of each Administered REO Property
during such Collection Period that are then on deposit in such REO Account, net
of any withdrawals made out of such amounts pursuant to the preceding sentence;
provided that (A) in the case of each Administered REO Property, the Special
Servicer may retain in its REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of such
Administered REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period and (B)
if such REO Property relates to the Serviced Mortgage Loan Group, the applicable
Master Servicer shall make, from such amounts so deposited or remitted as
described above, any deposits into any related Companion Note Custodial Account
contemplated by Section 3.04(e). For the avoidance of doubt, such amounts
withdrawn from an REO Account and deposited into the applicable Master
Servicer's Collection Account following the end of each Collection Period
pursuant to the preceding sentence shall, upon such deposit, be construed to
have been received by the applicable Master Servicer during such Collection
Period.
(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, its REO Account pursuant to Section 3.16(b) or 3.16(c).
(e) Notwithstanding anything to the contrary, this Section 3.16 shall
not apply to any REO Property related to the Non-Trust-Serviced Pooled Mortgage
Loan.
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SECTION 3.17. Management of Administered REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Serviced Mortgage Loan, the Special Servicer shall review
the operation of such Mortgaged Property and determine the nature of the income
that would be derived from such property if it were acquired by the Trust. 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 (such tax referred to herein as
an "REO Tax"), then such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property, other than holding such REO Property for
sale or lease or performing construction work thereon;
(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 judgment of the Special Servicer, exercised in
accordance with the Servicing Standard, it is commercially reasonable) so
lease or otherwise operate 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
either (i) that the income or earnings with respect to such REO Property
will offset any REO Tax relating to such income or earnings and will
maximize the net recovery from the applicable REO Property to the
Certificateholders or (ii) that no commercially reasonable means exists to
operate such property as REO Property without the Trust incurring or
possibly incurring an REO Tax on income from such property, then the Special
Servicer shall deliver to the Tax Administrator and the Controlling Class
Representative, in writing, a proposed plan (the "Proposed Plan") to manage
such property as REO Property. Such plan shall include potential sources of
income and good faith estimates of the amount of income from each such
source. Within a reasonable period of time after receipt of such plan, the
Tax Administrator shall consult with the Special Servicer and shall advise
the Special Servicer of the Trust's federal income tax reporting position
with respect to the various sources of income that the Trust would derive
under the Proposed Plan. In addition, the Tax Administrator shall (to the
maximum extent reasonably possible and at a reasonable fee, which fee shall
be an expense of the Trust) advise the Special Servicer of the estimated
amount of taxes that the Trust 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 Tax Administrator, the Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property) or (B) manage and operate such property
in a manner that would not result in the imposition of an REO Tax on the
income derived from such property.
Subject to Section 3.17(b), the Special Servicer's decision as to how
each Administered REO Property shall be managed and operated shall be in
accordance with the Servicing Standard. Neither the Special Servicer nor the Tax
Administrator shall be liable to the Certificateholders, the Trustee, the Trust,
the other parties hereto, any beneficiaries hereof or each other for errors in
judgment made in good faith in the exercise of their discretion while performing
their respective responsibilities under this Section 3.17(a) with respect to any
Administered REO Property. Nothing in this Section 3.17(a) is intended to
prevent the sale of any Administered REO Property pursuant to the terms and
subject to the conditions of Section 3.18.
(b) If title to any Administered REO Property is acquired, the Special
Servicer shall manage, conserve, protect and operate such REO Property for the
benefit of the Certificateholders (or, in the case of any REO Property related
to the Serviced Mortgage Loan Group, on behalf of both the Certificateholders
and the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a
collective whole, solely for the purpose of its prompt disposition and sale in
accordance with Section 3.18, in a manner that does not cause such Administered
REO Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code or, except as contemplated by Section
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3.17(a), result in the receipt by any REMIC Pool of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code,
in an Adverse REMIC Event with respect to any REMIC Pool or in an Adverse
Grantor Trust Event with respect to either Grantor Trust Pool. Except as
contemplated by Section 3.17(a), the Special Servicer shall not enter into any
lease, contract or other agreement with respect to any Administered REO Property
that causes the Trust to receive, and (unless required to do so under any lease,
contract or agreement to which the Special Servicer or the Trust may become a
party or successor to a party due to a foreclosure, deed-in-lieu of foreclosure
or other similar exercise of a creditor's rights or remedies with respect to the
related Serviced Mortgage Loan) shall not, with respect to any Administered REO
Property, cause or allow the Trust to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection with the administration of any Administered
REO Property, as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from its REO Account , to the extent of amounts on
deposit therein with respect to such REO Property, funds necessary for the
proper operation, management, maintenance and disposition of such REO Property,
including:
(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
(iv) all other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the Special Servicer's REO Account with
respect to any Administered REO Property are insufficient for the purposes
contemplated by the preceding sentence with respect to such REO Property, the
applicable Master Servicer shall, at the direction of the Special Servicer, but
subject to Section 3.11(h), make a Servicing Advance of such amounts as are
necessary for such purposes unless such Master Servicer or the Special Servicer
determines, in its reasonable judgment, that such advances would, if made, be
Nonrecoverable Servicing Advances; provided, however, that such Master Servicer
may in its sole discretion 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) The Special Servicer may, and, if required for the Administered REO
Property to continue to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, shall, contract with any Independent Contractor
for the operation and management of any Administered 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) shall be reasonable and customary in consideration of
the nature and locality of such REO Property;
(iii) any such contract shall be consistent with Treasury
Regulations Section 1.856-6(e)(6) and 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 those listed in
Section 3.17(b) above, and (B) remit all related revenues collected (net of
its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
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(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, and
the Special Servicer shall comply with the Servicing Standard in maintaining
such Independent Contractor.
The Special Servicer shall be entitled to enter into any agreement with
any Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any Administered REO
Property are greater than the revenues available from such property, such excess
costs shall be covered by, and be reimbursable as, a Servicing Advance.
(d) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any REO Property related to the Non-Trust-Serviced Pooled Mortgage
Loan.
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties;
Sale of Non-Trust- Serviced Pooled Mortgage Loans.
(a) The applicable Master Servicer, the Special Servicer or the Trustee
may sell or purchase, or permit the sale or purchase of, a Pooled Mortgage Loan
or REO Property (or, in the case of any REO Property related to a Mortgage Loan
Group, such REO Property and/or the beneficial interest of the Trust Fund in
such REO Property) only (i) on the terms and subject to the conditions set forth
in this Section 3.18, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03 and 9.01 of this Agreement, (iii) in the case of a Pooled Mortgage
Loan (or REO Property related thereto) with a related mezzanine loan, in
connection with a Mortgage Loan default as set forth in the related
intercreditor agreement or (iv) in the case of the Non-Trust-Serviced Pooled
Mortgage Loan (or REO Property related thereto), pursuant to a purchase option
(if any) under the related Mortgage Loan Group Intercreditor Agreement and/or
the Non-Trust Servicing Agreement.
(b) If any Pooled Mortgage Loan becomes a Specially Designated
Defaulted Pooled Mortgage Loan, then the Special Servicer shall so notify the
Certificate Administrator, the Trustee, the applicable Master Servicer, the
Controlling Class Representative and the Holder(s) of the Controlling Class, in
writing. In addition, the Special Servicer shall determine (in accordance with
the Servicing Standard, taking into account the considerations contemplated by
the following paragraph, but without regard to the Purchase Option provided for
in Section 3.18(c) below), and report to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Holder(s) of the
Controlling Class, the Fair Value of such Pooled Mortgage Loan. The Special
Servicer's determination of the Fair Value of any Specially Designated Defaulted
Pooled Mortgage Loan shall be made as soon as reasonably practicable, but in no
event later than 30 days after the Special Servicer receives the requisite
Appraisal or any other third-party reports that it deems necessary to make the
determination. If at any time the Special Servicer becomes aware of any
circumstances or conditions that have occurred or arisen with respect to any
Specially Designated Defaulted Pooled Mortgage Loan or the related Mortgaged
Property subsequent to, and that would, in the Special Servicer's reasonable
judgment, materially affect, the Special Servicer's most recent Fair Value
determination with respect to such Specially Designated Defaulted Pooled
Mortgage Loan, then the Special Servicer shall redetermine (in a manner as is
permitted above, but taking into account any such new circumstances or
conditions known to the Special Servicer), and report to the Certificate
Administrator, the Trustee, the Controlling Class Representative and the
applicable Master Servicer (and the Certificate Administrator shall, in turn,
report to the Holder(s) of the Controlling Class), the updated Fair Value of the
subject Specially Designated Defaulted Pooled Mortgage Loan. In addition, if the
Special Servicer has not accepted a bid at the Fair Value of the Mortgage Loan,
as most recently determined by the Special Servicer, prior to the expiration of
90 days from such determination, and thereafter the Special Servicer receives a
bid at such Fair Value or a request from a holder of the Purchase Option for an
updated determination of the Fair Value of the Mortgage Loan, the Special
Servicer shall redetermine (in the same manner as provided above, but taking
into account any such new circumstances or conditions known to the Special
Servicer), and report to the Trustee, the Certificate Administrator, the
Controlling Class Representative and the applicable Master Servicer (and the
Certificate Administrator shall, in turn, report to the Holder(s)
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of the Controlling Class), the updated Fair Value of the subject Specially
Designated Defaulted Pooled Mortgage Loan; provided, however, that the Special
Servicer may rely on the existing third-party information if it deems such
reliance to be reasonable.
In determining the Fair Value of any Specially Designated Defaulted
Pooled 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 related Mortgaged Property is
located, and the time and expense associated with and the expected recovery from
a purchaser's foreclosing on the related Mortgaged Property or working out such
Mortgage Loan. In addition, the Special Servicer shall refer to all relevant
information contained in the Servicing File, shall take into account the most
recent Appraisal obtained or conducted with respect to the related Mortgaged
Property in the preceding 12-month period in accordance with this Agreement and
shall not determine the Fair Value of any Specially Designated Defaulted Pooled
Mortgage Loan without such an Appraisal; provided that the Special Servicer
shall take account of any change in the circumstances regarding or the condition
of the related Mortgaged Property known to the Special Servicer that has
occurred or arisen subsequent to, and that would materially affect the value of
the related Mortgaged Property reflected in, such Appraisal. Furthermore, the
Special Servicer shall consider available objective third-party information
obtained from generally available sources, as well as information obtained from
vendors providing real estate services to the Special Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Special Servicer may, to the extent it is reasonable to do so in
accordance with the Servicing Standard, conclusively rely on any opinions or
reports of qualified Independent third parties expert in real estate or
commercial mortgage loan matters with at least 5 years experience in valuing or
investing in loans similar to the subject Specially Designated Defaulted
Mortgage Loan in making such determination. The reasonable costs of all
appraisals, inspection reports and broker opinions of value, incurred by the
Special Servicer pursuant to this Section 3.18(b) shall constitute, and be
reimbursable as, Servicing Advances. The other parties to this Agreement shall
cooperate with all reasonable requests for information made by the Special
Servicer in order to allow the Special Servicer to perform its duties pursuant
to this Section 3.18(b).
Notwithstanding the foregoing, no Fair Value shall be determined under
this Agreement with respect to the Non-Trust-Serviced Pooled Mortgage Loan.
(c) The Majority Controlling Class Certificateholder(s) or any assignee
thereof may, at its or their option, purchase from the Trust any Specially
Designated Defaulted Pooled Mortgage Loan (such option, the "Purchase Option"),
at a cash price (the "Option Price") equal to the Fair Value of such Mortgage
Loan (as most recently determined by the Special Servicer and reported to the
Trustee, the Certificate Administrator, the Controlling Class Representative and
the applicable Master Servicer as provided in Section 3.18(b) above) or, if no
such Fair Value has yet been established as provided in Section 3.18(b) above or
if the Special Servicer is in the process of redetermining such Fair Value
because of a change in circumstances, equal to the Purchase Price; provided
that:
(i) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan will remain in effect only for the period
(the "Option Period") that commences on the date that such Mortgage Loan
first becomes a Specially Designated Defaulted Pooled Mortgage Loan and ends
on the earlier of (A) the date on which such Mortgage Loan becomes a
Corrected Mortgage Loan or otherwise ceases to be a Specially Designated
Defaulted Pooled Mortgage Loan and (B) the date on which a Liquidation Event
occurs with respect to such Pooled Mortgage Loan or the related Mortgaged
Property becomes an REO Property;
(ii) the Purchase Option with respect to any Specially Designated
Defaulted Pooled Mortgage Loan shall be assignable by the Majority
Controlling Class Certificateholder(s) during the Option Period to any third
party (but in any event any assignment of the Purchase Option to the related
Borrower under such Specially Designated Defaulted Pooled Mortgage Loan or
any Affiliate of such Borrower shall constitute a violation of this Section
3.18), provided that the parties hereto are notified in writing of the
assignment;
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(iii) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the Majority
Controlling Class Certificateholder(s) or any assignee thereof within 60
days after the Fair Value of such Mortgage Loan has initially been
established as provided in Section 3.18(b) above, then the Majority
Controlling Class Certificateholder(s) shall be deemed to have assigned such
Purchase Option, for a 30-day period only, to the Special Servicer;
(iv) during the 30-day period following the assignment to it of
the Purchase Option with respect to any Specially Designated Defaulted
Pooled Mortgage Loan, the Special Servicer shall be entitled to exercise
such Purchase Option or to assign such Purchase Option to any third party
(but in any event any assignment of the Purchase Option to the related
Borrower under such Specially Designated Defaulted Pooled Mortgage Loan or
any Affiliate of such Borrower shall constitute a violation of this Section
3.18), provided that the other parties hereto are notified in writing of the
assignment;
(v) if the Purchase Option with respect to any Specially
Designated Defaulted Pooled Mortgage Loan is not exercised by the Special
Servicer or its assignee within the 30-day period following the assignment
of such Purchase Option to the Special Servicer as contemplated by clause
(iii) above, then such Purchase Option will automatically revert to the
Majority Controlling Class Certificateholder(s); and
(vi) prior to any exercise of the Purchase Option with respect to
any Specially Designated Defaulted Pooled Mortgage Loan by the Special
Servicer or any Affiliate thereof, subject to the following paragraph, the
Trustee shall confirm and report to the applicable Master Servicer, the
Certificate Administrator and the Special Servicer that the Special
Servicer's determination of the Fair Value of such Mortgage Loan is
consistent with or greater than what the Trustee considers to be the Fair
Value of such Mortgage Loan; provided that the Special Servicer may, at its
own expense, revise any such Fair Value determination that is rejected by
the Trustee, it being understood and agreed that such revised Fair Value
determination will likewise be subject to confirmation in accordance with
this clause (vi).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the Trustee is required to confirm or reject the
Special Servicer's Fair Value determination as contemplated by such clause (vi),
the Trustee may (at its option and at the expense of the Trust Fund) designate
an Independent third party expert in real estate or commercial mortgage loan
matters with at least 5 years' experience in valuing or investing in loans
similar to the subject Specially Designated Defaulted Pooled Mortgage Loan, that
has been selected with reasonable care by the Trustee to confirm that the
Special Servicer's Fair Value determination as contemplated by such clause (vi)
is consistent with or greater than what the Independent third party considers to
be the Fair Value of such Mortgage Loan. In the event that the Trustee
designates such a third party to make such determination, the Trustee shall be
entitled to rely upon such third party's determination. The reasonable costs of
all appraisals, inspection reports and broker opinions of value, incurred by the
Trustee or any such third party pursuant to this paragraph or clause (vi) of the
preceding paragraph shall be advanced by the applicable Master Servicer and
shall constitute, and be reimbursable as, Servicing Advances; provided that, the
Trustee shall not so engage a third party expert whose fees exceed a
commercially reasonable sum as determined by the Trustee. The Special Servicer
shall provide the Trustee with all information that the Special Servicer
utilized in determining the Fair Value that is being confirmed.
Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Pooled Mortgage Loan by providing
to the Certificate Administrator, the Trustee, the applicable Master Servicer
and the Special Servicer:
(i) written notice of its intention to purchase such Mortgage Loan
at the Option Price; and
(ii) if such party is the assignee of the Special Servicer or the
Majority Controlling Class Certificateholder(s), evidence of its right to
exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Pooled Mortgage Loan
shall occur (by delivery of cash in the
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amount of the applicable Option Price to the Special Servicer for deposit in the
applicable Master Servicer's Collection Account) no later than ten days after
the later of (i) such exercise of the Purchase Option with respect to such
Mortgage Loan and (ii) if applicable, the confirmation of the Special Servicer's
Fair Value determination with respect to such Mortgage Loan in accordance with
clause (vi) of the first paragraph of this Section 3.18(c) and/or in accordance
with the second paragraph of this Section 3.18(c). If any Person to which the
Purchase Option has been assigned as provided above exercises the Purchase
Option but fails to consummate the actual purchase of the applicable Specially
Designated Defaulted Pooled Mortgage Loan in accordance with the preceding
sentence, then the Purchase Option shall automatically thereupon be reinstated,
revert to and be exercisable by the Controlling Class Representative or the
Special Servicer, as applicable.
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the Special Servicer shall proceed in respect of any Specially
Designated Defaulted Pooled Mortgage Loan in accordance with Section 3.09 and/or
Section 3.20, without regard to such Purchase Option.
In no event shall there be a Purchase Option hereunder with respect to
the Non-Trust-Serviced Pooled Mortgage Loan. However, in the event of the
exercise of a similar option under the Non-Trust Servicing Agreement and/or
pursuant to the related Mortgage Loan Group Intercreditor Agreement, the Trustee
shall sell such Non-Trust-Serviced Pooled Mortgage Loan in accordance with such
agreement.
(d) The Special Servicer shall use its reasonable efforts, consistent
with the Servicing Standard, to solicit cash bids for each Administered REO
Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any Administered REO Property
within a customary and normal time frame for the sale of comparable properties
(and, in any event, within the time period provided for by Section 3.16(a)). The
Special Servicer shall accept the first (and, if multiple cash bids are received
by a specified bid date, the highest) cash bid received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for such
Administered REO Property. If the Special Servicer reasonably believes that it
will be unable to realize a fair price (determined pursuant to Section 3.18(e)
below) with respect to any Administered REO Property within the time constraints
imposed by Section 3.16(a), then the Special Servicer shall, consistent with the
Servicing Standard, dispose of such REO Property upon such terms and conditions
as it shall deem necessary and desirable to maximize the recovery thereon under
the circumstances.
The Special Servicer shall give the Certificate Administrator, the
Trustee, the applicable Master Servicer and the Controlling Class Representative
not less than five (5) Business Days' prior written notice of its intention to
sell any Administered REO Property pursuant to this Section 3.18(d). No Pooled
Mortgage Loan Seller, Certificateholder or any Affiliate of any such Person
shall be obligated to submit a bid to purchase any Administered REO Property,
and notwithstanding anything to the contrary herein, neither the Trustee, in its
individual capacity, nor any of its Affiliates may bid for or purchase any
Administered REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Administered
REO Property for purposes of Section 3.18(d), shall be determined by the Special
Servicer or, if such cash bid is from the Special Servicer or any Affiliate of
the Special Servicer, by the Trustee. In determining whether any bid received
from the Special Servicer or an Affiliate of the Special Servicer represents a
fair price for any REO Property, the Trustee shall be supplied with and shall be
entitled to rely on the most recent Appraisal in the related Servicing File
conducted in accordance with this Agreement within the preceding 12-month period
(or, in the absence of any such Appraisal or if there has been a material change
at the subject property since any such Appraisal, on a new Appraisal to be
obtained by the Special Servicer, the cost of which shall be covered by, and be
reimbursable as, a Servicing Advance). The appraiser conducting any such new
Appraisal shall be a Qualified Appraiser that is (i) selected by the Special
Servicer if neither the Special Servicer nor any Affiliate thereof is bidding
with respect to the subject Administered REO Property and (ii) selected by the
Trustee if either the Special Servicer or any Affiliate thereof is so bidding.
Where any Pooled Mortgage Loan Seller, any Certificateholder or any Affiliate of
any such Person is among those bidding with respect to any Administered REO
Property, the Special Servicer shall require that all bids be submitted to it
(or, if the Special Servicer or an Affiliate thereof is bidding, be submitted to
the Trustee) in writing and be accompanied by a refundable deposit of cash in an
amount equal to 5% of the
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bid amount. In determining whether any bid from a Person other than any Pooled
Mortgage Loan Seller, any Certificateholder or any Affiliate of any such Person
constitutes a fair price for any Administered REO Property, the Special Servicer
shall take into account the results of any Appraisal or updated Appraisal that
it or the applicable Master Servicer may have obtained in accordance with this
Agreement within the prior twelve (12) months, as well as, among other factors,
the occupancy level and physical condition of such REO Property, the state of
the then current local economy and commercial real estate market where such REO
Property is located and the obligation to dispose of such REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period specified in Section 3.16(a)). The Purchase
Price for any Administered REO Property (which, in connection with an
Administered REO Property related to a Mortgage Loan Group serviced hereunder,
shall be construed and calculated as if all the Mortgage Loans in such Mortgage
Loan Group together constitute a single "Pooled Mortgage Loan" thereunder) shall
in all cases be deemed a fair price. Notwithstanding the other provisions of
this Section 3.18, no cash bid from the Special Servicer or any Affiliate
thereof shall constitute a fair price for any Administered REO Property unless
such bid is the highest cash bid received and at least two Independent bids (not
including the bid of the Special Servicer or any Affiliate) have been received.
In the event the bid of the Special Servicer or any Affiliate thereof is the
only bid received or is the higher of only two bids received, then additional
bids shall be solicited. If an additional bid or bids, as the case may be, are
received for any Administered REO Property and the original bid of the Special
Servicer or any Affiliate thereof is the highest of all bids received, then the
bid of the Special Servicer or such Affiliate shall be accepted, provided that
the Trustee has otherwise determined, as provided above in this Section 3.18(e),
that such bid constitutes a fair price for the subject Administered REO
Property. Any bid by the Special Servicer for any Administered REO Property
shall be unconditional; and, if accepted, the subject Administered REO Property
shall be transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special
Servicer shall act on behalf of the Trustee in negotiating with Independent
third parties in connection with the sale of any Administered REO Property and
taking any other action necessary or appropriate in connection with the sale of
any Specially Designated Defaulted Pooled Mortgage Loan or Administered REO
Property, and the collection of all amounts payable in connection therewith. In
connection with the sale of any Administered REO Property, the Special Servicer
may charge prospective bidders, and may retain, fees that approximate the
Special Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into a Collection Account; provided, that if the Special Servicer was
previously reimbursed for such costs from the Collection Account, then the
Special Servicer must deposit such amounts into a Collection Account. Any sale
of a Specially Designated Defaulted Pooled Mortgage Loan or any Administered REO
Property shall be final and without recourse to the Trustee or the Trust, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Pooled Mortgage Loan
or Administered REO Property shall be for cash only.
(h) The applicable Master Servicer shall act on behalf of the Trustee
in coordinating with independent third parties seeking to purchase the
Non-Trust-Serviced Pooled Mortgage Loan by, and taking any other action
necessary or appropriate in connection with the sale of such Non-Trust-Serviced
Pooled Mortgage Loan to, any purchase option holder with respect thereto
pursuant to the Non-Trust Servicing Agreement and/or the related Mortgage Loan
Group Intercreditor Agreement, and the collection of all amounts payable in
connection therewith. Any sale of the Non-Trust-Serviced Pooled Mortgage Loan
pursuant to the Non-Trust Servicing Agreement and/or the related Mortgage Loan
Group Intercreditor Agreement shall be final and without recourse to the Trustee
or the Trust, and if such sale is consummated in accordance with the terms of
the Non-Trust Servicing Agreement and/or the related Mortgage Loan Group
Intercreditor Agreement, none of the applicable Master Servicer, the Special
Servicer or the Trustee shall have any liability to any Certificateholder with
respect to the purchase price for the Non-Trust-Serviced Pooled Mortgage Loan
accepted on behalf of the Trust.
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(i) If any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property is sold under this Section 3.18, or the
Non-Trust-Serviced Pooled Mortgage Loan is sold in accordance with this
Agreement and pursuant to the related Mortgage Loan Group Intercreditor
Agreement or the Non-Trust Servicing Agreement, then the purchase price shall be
deposited into the applicable Master Servicer's Collection Account, and the
Trustee, upon receipt of written notice from the applicable Master Servicer to
the effect that such deposit has been made (based upon, in the case of a
Specially Designated Defaulted Pooled Mortgage Loan or Administered REO
Property, notification by the Special Servicer to such Master Servicer of the
amount of the purchase price), 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 ownership of such Mortgage Loan or REO
Property in the Person who purchased such Mortgage Loan or REO Property.
(j) If the applicable Pooled Mortgage Loan is part of the 11 Penn Plaza
Loan Group, the applicable Purchase Option Holder that exercises the Purchase
Option must also purchase the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
for a cash price equal to an amount that bears the same proportion to the
outstanding principal balance of such 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan as the Fair Value of the 11 Penn Plaza Pooled Mortgage Loan bears
to the outstanding principal balance of the 11 Penn Plaza Pooled Mortgage Loan.
(k) The Purchase Option for any Specially Designated Defaulted Pooled
Mortgage Loan pursuant to this Section 3.18 shall terminate, and shall not be
exercisable as set forth in subsections (b) and (c) above (or if exercised, but
the purchase of the subject Pooled Mortgage Loan has not yet occurred, shall
terminate and be of no further force or effect) if and when (i) the Special
Servicer has accepted a Fair Value bid, (ii) such Specially Designated Defaulted
Pooled Mortgage Loan has become a Corrected Mortgage Loan or has otherwise
ceased to be a Specially Designated Defaulted Pooled Mortgage Loan, (iii) the
related Mortgaged Property has become an REO Property, (iv) a Final Recovery
Determination has been made with respect to such Specially Designated Defaulted
Pooled Mortgage Loan, or (v) such Specially Designated Defaulted Pooled Mortgage
Loan has otherwise been removed from the Trust.
SECTION 3.19. Additional Obligations of Master Servicers and Special
Servicer.
(a) Within sixty (60) days (or within such longer period as the Special
Servicer is (as certified thereby to the Trustee in writing) diligently using
reasonable efforts to obtain the Appraisal referred to below) after the earliest
of the date on which any Serviced Pooled Mortgage Loan (i) becomes a Modified
Mortgage Loan following the occurrence of a Servicing Transfer Event, (ii)
becomes an REO Pooled Mortgage Loan, (iii) with respect to which a receiver or
similar official is appointed and continues for 60 days in such capacity in
respect of the related Mortgaged Property, (iv) the related Borrower becomes the
subject of bankruptcy, insolvency or similar proceedings or, if such proceedings
are involuntary, such proceedings remain undismissed for sixty (60) days, or (v)
any Monthly Payment becomes 60 days or more delinquent and such event
constitutes a Servicing Transfer Event (each such event, an "Appraisal Trigger
Event" and each such Serviced Pooled Mortgage Loan and any related REO Pooled
Mortgage Loan that is the subject of an Appraisal Trigger Event, until it ceases
to be such in accordance with the following paragraph, a "Required Appraisal
Loan"), the Special Servicer shall obtain an Appraisal of the related Mortgaged
Property, unless an Appraisal thereof had previously been received (or, if
applicable, conducted) within the prior twelve (12) months and the Special
Servicer has no knowledge of changed circumstances that in the Special
Servicer's reasonable judgment would materially affect the value of the
Mortgaged Property. If such Appraisal is obtained from a Qualified Appraiser,
the cost thereof shall be covered by, and be reimbursable as, a Servicing
Advance, such Advance to be made at the direction of the Special Servicer when
the Appraisal is received by the Special Servicer. Promptly following the
receipt of, and based upon, such Appraisal, the Special Servicer, in
consultation with the Controlling Class Representative, shall determine and
report to the Certificate Administrator, the Trustee and the applicable Master
Servicer the then applicable Appraisal Reduction Amount, if any, with respect to
the subject Required Appraisal Loan. For purposes of this Section 3.19(a), an
Appraisal may, in the case of any Serviced Pooled Mortgage Loan with an
outstanding principal balance of less than $2,000,000 only, consist solely of an
internal valuation performed by the Special Servicer.
A Serviced Pooled Mortgage Loan shall cease to be a Required Appraisal
Loan if and when, following the occurrence of the most recent Appraisal Trigger
Event, any and all Servicing Transfer Events with respect to such
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Mortgage Loan have ceased to exist and no other Appraisal Trigger Event has
occurred with respect thereto during the preceding ninety (90) days.
For so long as any Serviced Pooled Mortgage Loan or related REO Pooled
Mortgage Loan remains a Required Appraisal Loan, the Special Servicer shall,
within 30 days of each anniversary of such Mortgage Loan's having become a
Required Appraisal Loan, obtain (or, if such Required Appraisal Loan has a
Stated Principal Balance of $2,000,000 or less, at the Special Servicer's
option, conduct) an update of the prior Appraisal. If such update is obtained
from a Qualified Appraiser, the cost thereof shall be covered by, and be
reimbursable as, a Servicing Advance, such Advance to be made at the direction
of the Special Servicer when the Appraisal is received by the Special Servicer.
Promptly following the receipt of, and based upon, such update, the Special
Servicer shall redetermine, in consultation with the Controlling Class
Representative, and report to the Certificate Administrator, the Trustee and the
applicable Master Servicer the then applicable Appraisal Reduction Amount, if
any, with respect to the subject Required Appraisal Loan. Promptly following the
receipt of, and based upon, such update, in the case of the 00 Xxxx Xxxxx
Mortgaged Property, the Special Servicer shall also redetermine, and report to
the Trustee, the applicable Master Servicer, the Controlling Class
Representative and the related Serviced Non-Pooled Mortgage Loan Noteholder, the
Appraisal Reduction Amount, if any, with respect to the entire Serviced Mortgage
Loan Group (calculated as if it was a single Serviced Pooled Mortgage Loan).
The Controlling Class Representative shall have the right at any time,
but not more frequently that once in any six month period, to require that the
Special Servicer obtain a new Appraisal of the subject Mortgaged Property in
accordance with MAI standards, at the expense of the Controlling Class
Certificateholders. Upon receipt of such Appraisal, the Special Servicer shall
deliver a copy thereof to the Trustee, the applicable Master Servicer, the
Controlling Class Representative. Promptly following the receipt of, and based
upon, such Appraisal, the Special Servicer shall redetermine and report to the
Trustee, the Master Servicer and the Controlling Class Representative the then
applicable Appraisal Reduction Amount, if any, with respect to the subject
Required Appraisal Mortgage Loan.
(b) Notwithstanding anything to the contrary contained in any other
Section of this Agreement, the Special Servicer shall notify the applicable
Master Servicer whenever a Servicing Advance is required to be made with respect
to any Specially Serviced Mortgage Loan or Administered REO Property, and, such
Master Servicer shall (subject to Section 3.11(h)) make such Servicing Advance;
provided that the Special Servicer shall make any Servicing Advance on a
Specially Serviced Mortgage Loan or Administered REO Property that constitutes
an Emergency Advance. Each such notice and request shall be made, in writing,
not less than five (5) Business Days (and, to the extent reasonably practicable,
at least ten (10) Business Days) in advance of the date on which the subject
Servicing Advance is to be made and shall be accompanied by such information and
documentation regarding the subject Servicing Advance as the applicable Master
Servicer may reasonably request; provided, however, that the Special Servicer
shall not be entitled to make such a request more frequently than once per
calendar month (although such request may relate to more than one Servicing
Advance). Each Master Servicer shall have the obligation to make any such
Servicing Advance (other than a Nonrecoverable Servicing Advance) that it is so
requested by the Special Servicer to make (as described above) not later than
the date on which the subject Servicing Advance is to be made, but in no event
shall it be required to make any Servicing Advance on a date that is earlier
than five Business Days following such Master Servicer's receipt of such
request. If the request is timely and properly made, the requesting Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the applicable Master Servicer to make with respect
to any Specially Serviced Mortgage Loan or Administered REO Property (regardless
of whether or not such Master Servicer shall make such Servicing Advance). Each
Master Servicer shall be entitled to reimbursement for any Servicing Advance
made by it at the direction of the Special Servicer, together with Advance
Interest in accordance with Sections 3.05(a) and 3.11(g), at the same time, in
the same manner and to the same extent as such Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the direction of the Special Servicer, any Servicing Advance if such
Master Servicer determines in its reasonable judgment that such Servicing
Advance, although not characterized by the requesting Special Servicer as a
Nonrecoverable Servicing Advance, is in fact a Nonrecoverable Servicing Advance.
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Such Master Servicer shall notify the Special Servicer in writing of such
determination and, if applicable, such Nonrecoverable Servicing Advance shall be
reimbursed to the Special Servicer pursuant to Section 3.05(a).
(c) Each Master Servicer shall deliver to the Certificate Administrator
for deposit in the Distribution Account by 1:00 p.m. (New York City time) on
each Master Servicer Remittance Date, without any right of reimbursement
therefor, a cash payment (a "Compensating Interest Payment") in an amount equal
to the aggregate amount of Prepayment Interest Shortfalls incurred in connection
with Principal Prepayments received during the most recently ended Collection
Period with respect to Serviced Pooled Mortgage Loans as to which such Master
Servicer is the applicable Master Servicer, to the extent such Prepayment
Interest Shortfalls arose from (A) voluntary Principal Prepayments made by a
Borrower on such Serviced Pooled Mortgage Loans that are not Specially Serviced
Mortgage Loans or defaulted Mortgage Loans or (B) to the extent that such Master
Servicer did not apply the proceeds thereof in accordance with the terms of the
related Mortgage Loan Documents, involuntary principal prepayments made on such
Serviced Pooled Mortgage Loans that are not Specially Serviced Mortgage Loans or
defaulted Mortgage Loans.
The rights of the Certificateholders to offsets of any Prepayment
Interest Shortfalls shall not be cumulative from Collection Period to Collection
Period.
(d) With respect to each Serviced Pooled Mortgage Loan that is to be
defeased in accordance with its terms, the applicable Master Servicer shall
execute and deliver to each Rating Agency a certification substantially in the
form attached hereto as Exhibit P and, further, shall, to the extent permitted
by the terms of such Mortgage Loan, require the related Borrower (i) to provide
replacement collateral consisting of U.S. government securities within the
meaning of Section 2(a)(16) of the Investment Company Act in an amount
sufficient to make all scheduled payments under the subject Serviced Pooled
Mortgage Loan (or defeased portion thereof) when due (and assuming, in the case
of an ARD Mortgage Loan, to the extent consistent with the related Mortgage Loan
Documents, that the subject Serviced Pooled Mortgage Loan matures on its
Anticipated Repayment Date), (ii) to deliver a certificate from an independent
certified public accounting firm certifying that the replacement collateral is
sufficient to make such payments, (iii) at the option of the applicable Master
Servicer, to designate a single purpose entity (which may be (but is not
required to be) a subsidiary of the applicable Master Servicer established for
the purpose of assuming all defeased Serviced Mortgage Loans) to assume the
subject Serviced Pooled Mortgage Loan (or defeased portion thereof) and own the
defeasance collateral, (iv) to implement such defeasance only after the second
anniversary of the Closing Date, (v) to provide an Opinion of Counsel that the
Trustee has a perfected, first priority security interest in the new collateral,
and (vi) in the case of a partial defeasance of the subject Serviced Pooled
Mortgage Loan, to defease a principal amount equal to at least 125% of the
allocated loan amount for the Mortgaged Property or Properties to be released;
provided that, if (A) the subject Serviced Pooled Mortgage Loan has a Cut-off
Date Principal Balance greater than or equal to $20,000,000 or an outstanding
principal balance greater than or equal to 2% of the aggregate Stated Principal
Balance of the Mortgage Pool or is one of the ten largest Pooled Mortgage Loans
then in the Trust Fund, (B) the terms of the subject Serviced Pooled Mortgage
Loan do not permit the applicable Master Servicer to impose the foregoing
requirements and the applicable Master Servicer does not satisfy such
requirements on its own or (C) the applicable Master Servicer is unable to
execute and deliver the certification attached hereto as Exhibit P in connection
with the subject defeasance, then the applicable Master Servicer shall so notify
the Rating Agencies, the Controlling Class Representative and, so long as such a
requirement would not violate applicable law or the Servicing Standard, obtain a
written confirmation from each Rating Agency for the Rated Certificates that
such defeasance will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and, in the case of a
defeasance with respect to the 11 Penn Plaza Loan Group, also a written
confirmation from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities that such defeasance will not result in an
Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities rated by such Rating Agency. Subject to the
related Mortgage Loan Documents and applicable law, the applicable Master
Servicer shall not permit a defeasance unless (i) the subject Serviced Pooled
Mortgage Loan requires the Borrower to pay (or the Borrower in fact pays) all
Rating Agency fees associated with defeasance (if confirmation of the absence of
an Adverse Rating Event is a specific condition precedent thereto) and all
expenses associated with defeasance or other arrangements for payment of such
costs are made at no expense to the Trust Fund or the applicable Master Servicer
(provided, however, that in no event shall such proposed other arrangements
result in any liability to the Trust Fund including any indemnification of the
applicable Master
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Servicer or the Special Servicer which may result in legal expenses to the Trust
Fund), and (ii) the Borrower is required to provide all Opinions of Counsel,
including Opinions of Counsel that the defeasance will not cause an Adverse
REMIC Event or an Adverse Grantor Trust Event and that the related Mortgage Loan
Documents are fully enforceable in accordance with their terms (subject to
bankruptcy, insolvency and similar standard exceptions), and any applicable
rating confirmations with respect to the absence of an Adverse Rating Event.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer (in the case of a Serviced Mortgage Loan that
is a Specially Serviced Mortgage Loan) or the applicable Master Servicer (in the
case of a Performing Serviced Mortgage Loan) may (consistent with the Servicing
Standard) agree to any modification, waiver or amendment of any term of, extend
the maturity of, defer or forgive interest (including Default Interest and
Post-ARD Additional Interest) on and principal of, defer or forgive late payment
charges, Prepayment Premiums and Yield Maintenance Charges on, permit the
release, addition or substitution of collateral securing, and/or permit the
release, addition or substitution of the Borrower on or any guarantor of, any
Serviced Mortgage Loan for which it is responsible, subject, however, to
Sections 3.08, 3.24 and (solely in the case of a Serviced Mortgage Loan in the
11 Penn Plaza Loan Group) to the consultation rights described in Section 3.25
and set forth in the 11 Penn Plaza Intercreditor Agreement, and, further to each
of the following limitations, conditions and restrictions:
(i) other than as expressly set forth in Section 3.02 (with
respect to Post-ARD Additional Interest and Default Charges), Section 3.08
(with respect to due-on-sale and due-on-encumbrance clauses and transfers of
interests in Borrowers), Section 3.19(e) (with respect to defeasances),
Section 3.20(e) (with respect to Post-ARD Additional Interest) and Section
3.20(f) (with respect to various routine matters), the applicable Master
Servicer shall not agree to any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Serviced Mortgage Loan, that would affect the amount or
timing of any related payment of principal, interest or other amount payable
under such Mortgage Loan or materially and adversely affect the security for
such Mortgage Loan, unless (solely in the case of a Performing Serviced
Mortgage Loan) such Master Servicer has obtained the consent of the Special
Servicer (it being understood and agreed that (A) the applicable Master
Servicer shall promptly provide the Special Servicer with notice of any
Borrower request for such modification, waiver or amendment, the applicable
Master Servicer's recommendations and analysis, and with all information
reasonably available to the applicable Master Servicer that the Special
Servicer may reasonably request in order to withhold or grant any such
consent, (B) the Special Servicer shall decide whether to withhold or grant
such consent in accordance with the Servicing Standard (and subject to
Section 3.24), (C) except with respect to any Nationwide Pooled Mortgage
Loan, if any such consent has not been expressly denied within ten Business
Days of the Special Servicer's receipt from the applicable Master Servicer
of such Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to the applicable
Master Servicer in order to make an informed decision, such consent shall be
deemed to have been granted and (D) solely with respect to any Nationwide
Pooled Mortgage Loan, any such consent shall be deemed to have been granted
if such consent has not been expressly denied either (x) within ten Business
Days of the Special Servicer's initial receipt of the applicable Master
Servicer's recommendations and analysis, if the Special Servicer has not
requested additional information as described above on or before the date
that is four Business Days following the Special Servicer's receipt of the
applicable Master Servicer's recommendations and analysis, or (y) within six
Business Days following the Special Servicer's receipt of the additional
information requested by the Special Servicer as described above, if the
Special Servicer has requested such additional information on or before the
date that is four Business Days following the Special Servicer's initial
receipt of the applicable Master Servicer's recommendations and analysis);
(ii) other than as provided in Sections 3.02, 3.08, 3.20(e) and
3.20(f), the Special Servicer shall not agree to (or, in the case of a
Performing Serviced Mortgage Loan, consent to the applicable Master
Servicer's agreeing to) any modification, waiver or amendment of any term
of, or take (or, in the case of a Performing Serviced Mortgage Loan, consent
to the applicable Master Servicer's taking) any of the other acts referenced
in this Section 3.20(a) with respect to, any Serviced Mortgage Loan that
would affect the amount or
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timing of any related payment of principal, interest or other amount payable
thereunder or, in the reasonable judgment of the Special Servicer, would
materially impair the security for such Mortgage Loan, unless a material
default on such Mortgage Loan has occurred or, in the reasonable judgment of
the Special Servicer, a default in respect of payment on such Mortgage Loan
is reasonably foreseeable, and such modification, waiver, amendment or other
action is reasonably likely to produce an equal or a greater recovery to
Certificateholders (and, in the case of the Serviced Mortgage Loan Group,
the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), as a
collective whole, on a net present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders
and, in the case of the Serviced Mortgage Loan Group, the relevant Serviced
Non-Pooled Mortgage Loan Noteholder(s) to be done at the related Net
Mortgage Rate), than would liquidation; provided that any modification,
extension, waiver or amendment of the payment terms of the related Serviced
Mortgage Loan Group shall be structured in a manner so as to be consistent
with the allocation and payment priorities set forth in the related Mortgage
Loan Documents, including the related Mortgage Loan Group Intercreditor
Agreement, it being the intention that neither the Trust as holder of the
related Pooled Mortgage Loan nor any Serviced Non-Pooled Mortgage Loan
Noteholder shall gain a priority over any other with respect to any payment,
which priority is not, as of the date of the related Mortgage Loan
Intercreditor Agreement, reflected in the related Mortgage Loan Documents,
including the related Mortgage Loan Group Intercreditor Agreement;
(iii) the Special Servicer shall not extend (or, in the case of a
Performing Serviced Mortgage Loan, consent to the applicable Master
Servicer's extending) the date on which any Balloon Payment is scheduled to
be due on any Serviced Mortgage Loan to a date beyond the earliest of (A)
two years prior to the Rated Final Distribution Date, (B) if such Serviced
Mortgage Loan is secured by a Mortgage solely or primarily on the related
Borrower's leasehold interest in the related Mortgaged Property, 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, ten years) prior to
the end of the then current term of the related Ground Lease (plus any
unilateral options to extend), and (C) if such Serviced Mortgage Loan is
covered by an Environmental Insurance Policy, for more than five years later
than such Serviced Mortgage Loan's Stated Maturity Date, unless either (I)
the Special Servicer shall have first determined in its reasonable judgment,
based upon a Phase I Environmental Assessment (and any additional
environmental testing that the Special Servicer deems necessary and prudent)
conducted by an Independent Person who regularly conducts Phase I
Environmental Assessments, and at the expense of the Borrower, that there
are no circumstances or conditions present at the related Mortgaged Property
for which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations or (II) the Borrower obtains (at its expense) an extension of
such policy on the same terms and conditions for a period ending not earlier
than five years following the extended maturity date of such Serviced
Mortgage Loan;
(iv) neither the applicable Master Servicer nor the Special
Servicer shall make or permit any modification, waiver or amendment of any
term of, or take any of the other acts referenced in this Section 3.20(a)
with respect to, any Serviced Mortgage Loan that would result in an Adverse
REMIC Event with respect to any REMIC Pool or an Adverse Grantor Trust Event
with respect to either Grantor Trust Pool (the Master Servicers and the
Special Servicer shall not be liable for decisions made under this
subsection which were made in good faith and each of them may rely on
Opinions of Counsel in making such decisions);
(v) subject to applicable law, the related Mortgage Loan Documents
and the Servicing Standard, neither the applicable Master Servicer nor the
Special Servicer shall permit any modification, waiver or amendment of any
term of any Performing Serviced Mortgage Loan unless all related fees and
expenses are paid by the Borrower;
(vi) the Special Servicer shall not permit (or, in the case of a
Performing Serviced Mortgage Loan, consent to the applicable Master
Servicer's permitting) any Borrower to add or substitute any real estate
collateral for its Serviced Mortgage Loan unless the Special Servicer shall
have first (A) determined in its reasonable judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that the
Special Servicer deems necessary and prudent) conducted by an Independent
Person who regularly
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conducts Phase I Environmental Assessments, at the expense of the related
Borrower, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations and (B) received, at the expense of the related Borrower,
written confirmation from each Rating Agency for the Rated Certificates that
such addition or substitution of collateral will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates rated by such
Rating Agency and, in the case of an addition or substitution of collateral
with respect to the 11 Penn Plaza Loan Group, also a written confirmation
from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities that such addition or substitution of
collateral will not result in an Adverse Rating Event with respect to any
class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated
by such Rating Agency; and
(vii) the Special Servicer shall not release (or, in the case of a
Performing Serviced Mortgage Loan, consent to the applicable Master
Servicer's releasing), including in connection with a substitution
contemplated by clause (vi) above, any real property collateral securing an
outstanding Serviced Mortgage Loan, except as provided in Section 3.09(d),
except as specifically required under the related Mortgage Loan Documents or
except where a Mortgage Loan (or, in the case of a Cross-Collateralized
Group, where such entire Cross-Collateralized Group) is satisfied, or except
in the case of a release where (A) the Rating Agencies have been notified in
writing, (B) either (1) the use of the collateral to be released will not,
in the reasonable judgment of the Special Servicer, materially and adversely
affect the net operating income being generated by or the use of the related
Mortgaged Property, or (2) there is a corresponding principal pay down of
such Mortgage Loan in an amount at least equal to the appraised value of the
collateral to be released (or substitute real estate collateral with an
appraised value at least equal to that of the collateral to be released, is
delivered), (C) the loan-to-value ratio of such Mortgage Loan after such
release will be, in the reasonable judgment of the Special Servicer, no
greater than that existing prior to such release and (D) if the collateral
to be released has an appraised value in excess of $3,000,000, such release
would not, in and of itself, result in an Adverse Rating Event with respect
to any Class of Rated Certificates (or, in the case of a release of
collateral with respect to the 11 Penn Plaza Loan Group, would not, in and
of itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates and also would not, in and of itself, result in an
Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities), in each case as confirmed in writing
to the Trustee by the applicable Rating Agency;
provided that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Serviced Mortgage Loan that either occurs automatically, or results from the
exercise of a unilateral option within the meaning of Treasury Regulations
Section 1.1001-3(c)(2)(iii) by the related Borrower, in any event under the
terms of such Mortgage Loan in effect on the Closing Date (or, in the case of a
Replacement Pooled Mortgage Loan, on the related date of substitution); and
provided, further, that, notwithstanding clauses (i) through (vii) above,
neither the applicable Master Servicer nor the Special Servicer shall be
required to oppose the confirmation of a plan in any bankruptcy or similar
proceeding involving a Borrower under a Serviced Mortgage Loan if, in its
reasonable judgment, such opposition would not ultimately prevent the
confirmation of such plan or one substantially similar.
(b) If any payment of interest on a Serviced Pooled Mortgage Loan is
deferred pursuant to Section 3.20(a), then such payment of interest shall not,
for purposes of calculating monthly distributions and reporting information to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Pooled Mortgage Loan, notwithstanding that the terms of
such Pooled Mortgage Loan so permit or that such interest may actually be
capitalized; provided, however, that this sentence shall not limit the rights of
the applicable Master Servicer or the Special Servicer on behalf of the Trust to
enforce any obligations of the related Borrower under such Pooled Mortgage Loan.
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(c) Each of the applicable Master Servicer and the Special Servicer
may, as a condition to its granting any request by a Borrower under a Serviced
Mortgage Loan for consent, modification, waiver or indulgence or any other
matter or thing, the granting of which is within such Master Servicer's or the
Special Servicer's, as the case may be, discretion pursuant to the terms of the
related Mortgage Loan Documents and is permitted by the terms of this Agreement,
require that such Borrower pay to it a reasonable or customary fee for the
additional services performed in connection with such request, together with any
related costs and expenses incurred by it; provided that the charging of such
fees would not otherwise constitute a "significant modification" of the subject
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b). All such
fees collected by the applicable Master Servicer and/or the Special Servicer
with respect to any Serviced Mortgage Loan shall be allocable between such
parties, as Additional Master Servicing Compensation and Additional Special
Servicing Compensation, respectively, as provided in Section 3.11.
(d) All modifications, amendments, material waivers and other material
actions entered into or taken in respect of the Serviced Mortgage Loans pursuant
to this Section 3.20 (other than waivers of Default Charges for which the
consent of the Special Servicer is required under Section 3.02), and all
material consents, shall be in writing. Each of the Special Servicer and the
applicable Master Servicer shall notify the other such party, each Rating
Agency, the Certificate Administrator, the Trustee and the Controlling Class
Representative, in writing, of any material modification, waiver, amendment or
other action entered into or taken thereby in respect of any Serviced Mortgage
Loan pursuant to this Section 3.20 (other than waivers of Default Charges for
which the consent of the Special Servicer is required under Section 3.02) and
the date thereof, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File (with a copy to the other such party), an
original counterpart of the agreement relating to such modification, waiver,
amendment or other action agreed to or taken by it, promptly (and in any event
within ten Business Days) following the execution thereof. In addition,
following the execution of any modification, waiver or amendment agreed to by
the Special Servicer or the applicable Master Servicer, as appropriate, pursuant
to Section 3.20(a) above, the Special Servicer or the applicable Master
Servicer, as applicable, shall deliver to the other such party, the Certificate
Administrator, the Trustee and the Rating Agencies an Officer's Certificate
certifying that all of the requirements of Section 3.20(a) have been met and, in
the case of the Special Servicer, setting forth in reasonable detail the basis
of the determination made by it pursuant to Section 3.20(a)(ii); provided that,
if such modification, waiver or amendment involves an extension of the maturity
of any Serviced Mortgage Loan, such Officer's Certificate shall be so delivered
before the modification, waiver or amendment is agreed to.
(e) With respect to any Performing Serviced Mortgage Loan that is an
ARD Mortgage Loan after its Anticipated Repayment Date, the applicable Master
Servicer shall be permitted, with the consent of the Special Servicer (which
consent shall be deemed granted if not denied in writing within ten Business
Days after receipt of the applicable Master Servicer's request therefor), to
waive (such waiver to be in writing addressed to the related Borrower, with a
copy to the Trustee) all or any portion of the accrued Post-ARD Additional
Interest in respect of such ARD Mortgage Loan if (i) the related Borrower has
requested the right to prepay such ARD Mortgage Loan in full together with all
payments required by the related Mortgage Loan Documents in connection with such
prepayment except for such accrued Post-ARD Additional Interest, and (ii) the
applicable Master Servicer has determined, in its reasonable judgment, that
waiving such Post-ARD Additional Interest is in accordance with the Servicing
Standard. The applicable Master Servicer shall prepare all documents necessary
and appropriate to effect any such waiver and shall coordinate with the related
Borrower for the execution and delivery of such documents.
(f) Notwithstanding anything in this Section 3.20 or in Section 3.08 or
Section 3.24 to the contrary, the applicable Master Servicer shall not be
required to seek the consent of, or provide prior notice to, the Special
Servicer, any Certificateholder or any Serviced Non-Pooled Pari Passu Companion
Noteholder or obtain any confirmation from the Rating Agencies with respect to
the absence of an Adverse Rating Event (unless required by the Mortgage Loan
Documents) in order to approve the following modifications, waivers or
amendments of the Performing Serviced Mortgage Loans: (i) waivers of minor
covenant defaults (other than financial covenants), including late financial
statements; (ii) releases of non-material parcels of a Mortgaged Property
(including, without limitation, any such releases (A) to which the related
Mortgage Loan Documents expressly require the mortgagee thereunder to make such
releases upon the satisfaction of certain conditions (and the conditions to the
release that are set forth in the related Mortgage Loan Documents do not include
the approval of the lender or the exercise of lender discretion (other than
confirming the
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satisfaction of the other conditions to the release set forth in the related
Mortgage Loan Documents that do not include any other approval or exercise)) and
such release is made as required by the related Mortgage Loan Documents or (B)
that are related to any condemnation action that is pending, or threatened in
writing, and would affect a non-material portion of the Mortgaged Property);
(iii) grants of easements or rights of way that do not materially affect the use
or value of a Mortgaged Property or the Borrower's ability to make any payments
with respect to the related Serviced Mortgage Loan; (iv) granting other routine
approvals, including the granting of subordination and nondisturbance and
attornment agreements and consents involving routine leasing activities that
affect less than the greater of (a) 30% of the net rentable area of the
Mortgaged Property or (b) 30,000 square feet of the Mortgaged Property (but the
applicable Master Servicer shall deliver to the Controlling Class Representative
copies of any such approvals granted by such Master Servicer); (v) approval of
annual budgets to operate the Mortgaged Property; (vi) grants of any waiver or
consent that the applicable Master Servicer determines (in accordance with the
Servicing Standard) to be immaterial; and (vii) approving a change of the
property manager at the request of the related Borrower (provided that the
related Mortgaged Property is not a hospitality property and either (A) the
change occurs in connection with an assignment and assumption approved in
accordance with Section 3.08 or (B) the successor property manager is not
affiliated with the Borrower and is a nationally or regionally recognized
manager of similar properties and the related Serviced Pooled Mortgage Loan does
not have a Stated Principal Balance that is greater than or equal to $8,500,000
or 2% of the then aggregate Stated Principal Balance of the Mortgage Pool,
whichever is less; provided that such modification, waiver, consent or amendment
(x) would not constitute a "significant modification" of the subject Serviced
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool, and (y)
would be consistent with the Servicing Standard.
(g) If and to the extent that the Trust, as holder of the
Non-Trust-Serviced Pooled Mortgage Loan, is entitled to consent to or approve
any modification, waiver or amendment of such Non-Trust-Serviced Pooled Mortgage
Loan, the applicable Master Servicer shall be responsible for responding to any
request for such consent or approval in accordance with the Servicing Standard,
and subject to the same conditions and/or restrictions, as if such
Non-Trust-Serviced Pooled Mortgage Loan was a Performing Serviced Mortgage Loan.
Insofar as any other Person would have consent rights hereunder with respect to
a similar modification, waiver or amendment of a Pooled Mortgage Loan that is a
Performing Serviced Mortgage Loan, such Person shall likewise have the same
consent rights, subject to the same conditions and/or restrictions, with respect
to such modification, waiver or amendment of such Non-Trust-Serviced Pooled
Mortgage Loan.
(h) The applicable Master Servicer shall, as to each Serviced Mortgage
Loan which is secured by the interest of the related Borrower under a Ground
Lease as listed on the Mortgage Loan Schedule, in accordance with the related
Mortgage Loan Documents, promptly (and, in any event, within 45 days) after the
Closing Date notify the related ground lessor of the transfer of such Mortgage
Loan to the Trust pursuant to this Agreement and inform such ground lessor that
any notices of default under the related Ground Lease should thereafter be
forwarded to such Master Servicer.
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer
and Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Serviced Mortgage Loan, the applicable Master Servicer shall
immediately give notice thereof to the Controlling Class Representative (and, if
affected thereby, to the related Serviced Non-Pooled Mortgage Loan Noteholder),
and if the applicable Master Servicer is not also the Special Servicer, the
applicable Master Servicer shall immediately give notice thereof to the Special
Servicer and the Trustee, and shall deliver the related Servicing File to the
Special Servicer and shall use its best 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 such Mortgage Loan and reasonably requested by the Special
Servicer to enable the Special Servicer to assume its functions hereunder with
respect thereto without acting through a Sub-Servicer. The information,
documents and records to be delivered by the applicable Master Servicer to the
Special Servicer pursuant to the prior sentence shall include, but not be
limited to, financial statements, appraisals, environmental/engineering reports,
leases, rent rolls, Insurance Policies, UCC Financing
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Statements and tenant estoppels, to the extent they are in the possession of
such Master Servicer (or any Sub-Servicer thereof). The applicable Master
Servicer shall use its best reasonable efforts to comply with the preceding two
sentences within five (5) Business Days of the occurrence of each related
Servicing Transfer Event. No later than ten Business Days before the applicable
Master Servicer is required to deliver a copy of the related Servicing File to
the Special Servicer, such Master Servicer shall review such Servicing File and
request from the Trustee any material documents that it is aware are missing
from such Servicing File.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the applicable Master Servicer is not also the
Special Servicer, the Special Servicer shall immediately give notice thereof to
the applicable Master Servicer, the Trustee and the Controlling Class
Representative (and, if affected thereby, to the related Serviced Non-Pooled
Mortgage Loan Noteholder) and shall return the related Servicing File within
five Business Days to the applicable Master Servicer. Upon giving such notice
and returning such Servicing File to the applicable Master Servicer, the Special
Servicer's obligation to service such Mortgage Loan, and the Special Servicer's
right to receive the Special Servicing Fee with respect to such Mortgage Loan,
shall terminate, and the obligations of the applicable Master Servicer to
service and administer such Mortgage Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with the
transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the applicable Master Servicer with respect to any
such Cross-Collateralized Mortgage Loan upon its becoming a Corrected Mortgage
Loan, the applicable Master Servicer and the Special Servicer shall each
transfer to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Group; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Mortgage Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loan, the Special
Servicer shall provide to the Trustee originals of documents contemplated by the
definition of "Mortgage File" and generated while the subject Serviced Mortgage
Loan is a Specially Serviced Mortgage Loan, for inclusion in the related
Mortgage File (with a copy of each such original to the applicable Master
Servicer), and copies of any additional related Mortgage Loan information,
including correspondence with the related Borrower generated while the subject
Serviced Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) The applicable Master Servicer and the Special Servicer shall each
furnish to the other, upon reasonable request, such reports, documents,
certifications and information in its possession, and access to such books and
records maintained thereby, as may relate to any Serviced Mortgage Loan or
Administered REO Property and as shall be reasonably required by the requesting
party in order to perform its duties hereunder.
(d) In connection with the performance of its obligations hereunder
with respect to any Serviced Mortgage Loan or Administered REO Property, each of
the applicable Master Servicer and the Special Servicer shall be entitled to
rely upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements and the Primary Servicing
Agreement.
(a) Each 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 (A) in each
case, the Sub-Servicing Agreement (as it may be amended or modified from time to
time): (i) insofar as it affects the Trust, is consistent with this Agreement in
all material respects; (ii) expressly or effectively provides that if such
Master Servicer or 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), any successor to such Master Servicer or the Special
Servicer, as the case may be, hereunder (including the Trustee if the Trustee
has become such successor pursuant to Section 7.02) may thereupon either assume
all of the rights and, except to the extent they arose prior to the date of
assumption, obligations of such Master Servicer or Special Servicer, as the case
may be, under such agreement or, subject to the provisions of
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Section 3.22(f), terminate such rights and obligations without payment of any
fee; (iii) prohibits the Sub-Servicer from modifying any Mortgage Loan or
commencing any foreclosure or similar proceedings with respect to any Mortgaged
Property without the consent of such Master Servicer and, further, prohibits the
Sub-Servicer from taking any action that such Master Servicer would be
prohibited from taking hereunder; (iv) if it is entered into by a Master
Servicer, does not purport to delegate or effectively delegate to the related
Sub-Servicer any of the rights or obligations of the Special Servicer with
respect to any Specially Serviced Mortgage Loan or otherwise; (v) 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 such Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii) and except with respect to the obligations of any
applicable successor Master Servicer under a Designated Sub-Servicer Agreement)
none of the Trustee, any successor to such 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 except as explicitly permitted
herein; (vi) permits any purchaser of a Pooled Mortgage Loan pursuant to this
Agreement to terminate such agreement with respect to such purchased Pooled
Mortgage Loan without cause and without payment of any termination fee; (vii)
does not permit the subject Sub-Servicer any rights of indemnification out of
the Trust Fund except through such Master Servicer or the Special Servicer, as
the case may be, pursuant to Section 6.03; and (viii) does not impose any
liability or indemnification obligation whatsoever on the Trustee or the
Certificateholders with respect to anything contained therein; and (B) the
Servicer Report Administrator shall not be entitled to enter into any
Sub-Servicing Agreement to provide for the performance by third parties of any
or all of the obligations imposed on it hereunder in its capacity as Servicer
Report Administrator. The applicable Master Servicer for the Nationwide Pooled
Mortgage Loans is hereby authorized and directed to execute and deliver the
Primary Servicing Agreement. Each party to this Agreement hereby acknowledges
and accepts the terms and provisions of the Primary Servicing Agreement and
agrees that, notwithstanding any other provision of this Agreement to the
contrary: (A) if such party is required hereunder to deliver any notice,
certification, report, schedule, statement or other type of writing to the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
the Primary Servicing Agreement, then, insofar as such writing relates to one or
more of such Pooled Mortgage Loans, such party shall deliver such writing both
to such applicable Master Servicer and to the Primary Servicer; (B) if any duty
or obligation of the applicable Master Servicer is delegated to the Primary
Servicer under the Primary Servicing Agreement, and such task involves or
requires the consent of the Special Servicer, then the Special Servicer shall
accept the performance of such duty or obligation directly by the Primary
Servicer (but such performance must otherwise comply with the other provisions
of this Agreement) as if the applicable Master Servicer were effecting such
performance and the Primary Servicer (in addition to the applicable Master
Servicer) shall have the direct benefit of the related conditions or duties
imposed on the Special Servicer or by which the Special Servicer is bound in
connection therewith (including, without limitation, any time periods for
consent or deemed consent to be observed by the Special Servicer or by which the
Special Servicer is bound); (C) the Primary Servicer (in addition to the
applicable Master Servicer) shall have the benefit of Section 6.03 of this
Agreement to the same extent as if it were the applicable Master Servicer (that
is, only if, and to the extent that, the applicable Master Servicer would have
been entitled to indemnification under such Section 6.03 if it were directly
servicing the applicable Pooled Mortgage Loans that are being primary serviced
by the Primary Servicer); (D) the Primary Servicer (in addition to the
applicable Master Servicer) shall be entitled to engage Sub-Servicers in
accordance with this Section 3.22 (including the engagement of a Sub-Servicer
under a Designated Sub-Servicing Agreement as contemplated under subsection (f))
as if the Primary Servicer were a Master Servicer (subject to such limitations,
if any, that are imposed on such engagement under the terms of the Primary
Servicing Agreement), and any successor to the applicable Master Servicer shall
be required to assume any Designated Sub-Servicing Agreement between the Primary
Servicer and the Sub-Servicer in the event of a termination of the Primary
Servicer under the Primary Servicing Agreement (unless the Sub-Servicer is in
default under the terms of such Designated Sub-Servicing Agreement); (E)
amendments to this Agreement shall be restricted in the manner contemplated by
Section 11.01(h); and (F) the Primary Servicer shall be a third party
beneficiary of this sentence.
(b) References in this Agreement to actions taken or to be taken by a
Master Servicer or the Special Servicer include actions taken or to be taken by
a Sub-Servicer on behalf of such Master Servicer or the Special Servicer or by
the Primary Servicer on behalf of the applicable Master Servicer with respect to
the Pooled Mortgage Loans that are the subject of the Primary Servicing
Agreement, as applicable; and, in connection therewith, all amounts advanced by
any
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Sub-Servicer or the Primary Servicer, as applicable, to satisfy the obligations
of a Master Servicer or the Special Servicer hereunder to make Advances shall be
deemed to have been advanced by such Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such Advances shall be
recoverable by such Sub-Servicer or the Primary Servicer, as applicable, through
such Master Servicer in the same manner and out of the same funds as if such
Sub-Servicer or the Primary Servicer, as applicable, were such Master Servicer
or the Special Servicer, as the case may be. Such Advances shall accrue interest
in accordance with Sections 3.11(g) and/or 4.03(d), such interest to be
allocable between such Master Servicer or the Special Servicer, as the case may
be, and such Sub-Servicer or the Primary Servicer, as applicable, as they may
agree. For purposes of this Agreement, the Master Servicers and the Special
Servicer shall each be deemed to have received any payment when a Sub-Servicer
retained by it, or the Primary Servicer on behalf of the applicable Master
Servicer with respect to the Pooled Mortgage Loans that are the subject of the
Primary Servicing Agreement, as applicable, receives such payment.
(c) The Master Servicers and the Special Servicer shall each deliver to
the Trustee copies of all Sub-Servicing Agreements, and any amendments thereto
and modifications thereof, entered into by it promptly upon its execution and
delivery of such documents.
(d) Each Sub-Servicer actually performing servicing functions and the
Primary Servicer (i) shall be authorized to transact business in the state or
states in which the Mortgaged Properties for the Mortgage Loans it is to service
are situated, if and to the extent required by applicable law, and (ii) to the
extent sub-servicing multifamily loans, shall be an approved conventional
seller/servicer of multifamily mortgage loans for Xxxxxxx Mac or Xxxxxx Mae or a
HUD-Approved Servicer.
(e) Each of the Master Servicers and the Special Servicer, for the
benefit of the Trustee and the Certificateholders (and, in the case of a
Subservicing Agreement related to the Serviced Mortgage Loan Group, for the
benefit of the related Serviced Non-Pooled Mortgage Loan Noteholder(s)), shall
(at no expense to any other party hereto or to the Certificateholders or the
Trust) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements and, in the case of the
applicable Master Servicer for the Pooled Mortgage Loans that are the subject of
the Primary Servicing Agreement, of the Primary Servicer under the Primary
Servicing Agreement. Such enforcement, including the legal prosecution of
claims, termination of Sub-Servicing Agreements or the Primary Servicing
Agreement, as applicable, 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 such Master Servicer or the Special Servicer,
as applicable, in its reasonable judgment, would require were it the owner of
the subject Mortgage Loans. Subject to the terms of the related Sub-Servicing
Agreement or the Primary Servicing Agreement, as applicable, including any
provisions thereof limiting the ability of a Master Servicer or the Special
Servicer, as applicable, to terminate a Sub-Servicer or the Primary Servicer,
each of the Master Servicers and the Special Servicer shall have the right to
remove a Sub-Servicer retained by it and, in the case of the applicable Master
Servicer for the Pooled Mortgage Loans that are the subject of the Primary
Servicing Agreement, the Primary Servicer, at any time it considers such removal
to be in the best interests of Certificateholders (and/or, in the case of a
Sub-Servicer for the Serviced Mortgage Loan Group, the related Serviced
Non-Pooled Mortgage Loan Noteholder(s)), as applicable.
(f) It shall be permissible for each Designated Sub-Servicing Agreement
to prohibit a termination of the related Sub-Servicer without cause (except that
cause shall be defined to include the occurrence of an Adverse Rating Event with
respect to the continuation of such Sub-Servicer to the extent it is actually
performing servicing functions or any event caused by such Sub-Servicer which
creates an Event of Default of the applicable Master Servicer under this
Agreement) or to require the payment of a termination fee (in an amount not to
exceed the amount, if any, set forth opposite the related Sub-Servicer on
Schedule III) upon any termination without cause. Any such right of a
Sub-Servicer under a Designated Sub-Servicing Agreement shall be binding upon
any successor to the applicable Master Servicer (including the Trustee) and the
obligation to pay such termination fee upon any termination of such Sub-Servicer
shall constitute a corporate obligation (not reimbursable by the Trust or any of
the other parties to this Agreement, including the applicable terminated Master
Servicer) of such successor.
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(g) In the event the Trustee or its designee assumes the rights and
obligations of a Master Servicer or the Special Servicer under any Sub-Servicing
Agreement or the Primary Servicing Agreement, such Master Servicer or the
Special Servicer, as the case may be, at its expense shall, upon request of the
Trustee, deliver to the assuming party all documents and records relating to
such Sub-Servicing Agreement or the Primary Servicing Agreement, as applicable,
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held on behalf of it thereunder, and otherwise use its
best efforts to effect the orderly and efficient transfer of the Sub-Servicing
Agreement or the Primary Servicing Agreement, as applicable, to the assuming
party.
(h) Notwithstanding any Sub-Servicing Agreement entered into by it and,
in the case of the applicable Master Servicer for the Pooled Mortgage Loans that
are the subject of the Primary Servicing Agreement, the Primary Servicing
Agreement, the Master Servicers and the Special Servicer shall each remain
obligated and liable to the Trustee and the Certificateholders (and, in the case
of the Serviced Mortgage Loan Group, the related Serviced Non-Pooled Mortgage
Loan Noteholder(s)) 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 it alone were servicing and
administering the Mortgage Loans and/or REO Properties for which it is
responsible. The Master Servicers and the Special Servicer shall each pay the
fees of any Sub-Servicer retained by it and, in the case of the applicable
Master Servicer for the Pooled Mortgage Loans that are the subject of the
Primary Servicing Agreement, the fees of the Primary Servicer in accordance with
the respective Sub-Servicing Agreement or the Primary Servicing Agreement, as
applicable, and, in any event, from its own funds (or from funds otherwise then
payable to it hereunder).
(i) Notwithstanding anything to the contrary set forth herein, any
account established and maintained by a Sub-Servicer pursuant to a Sub-Servicing
Agreement with a Master Servicer, or by the Primary Servicer pursuant to the
Primary Servicing Agreement with the applicable Master Servicer for the Pooled
Mortgage Loans that are the subject of the Primary Servicing Agreement, as
applicable, shall for all purposes under this Agreement be deemed to be an
account established and maintained by such Master Servicer.
(j) Notwithstanding any contrary provisions of the foregoing
subsections of this Section 3.22, the appointment by a Master Servicer or the
Special Servicer of one or more third-party contractors for the purpose of
performing discrete, ministerial functions shall not constitute the appointment
of Sub-Servicers and shall not subject to the provisions of this Section 3.22;
provided, however, that such Master Servicer or the Special Servicer, as the
case may be, shall remain responsible for the actions of such third-party
contractors as if it were alone performing such functions and shall pay all fees
and expenses of such third-party contractors. The proviso to the preceding
sentence shall not be construed to limit the right of a Master Servicer or the
Special Servicer to be reimbursed for any cost or expense for which it is
otherwise entitled to reimbursement under this Agreement.
(k) The Special Servicer shall not enter into any Sub-Servicing
Agreement unless the Controlling Class Representative has consented thereto.
(l) The Primary Servicer shall indemnify (out of its own funds without
reimbursement therefor) the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Certificate Administrator, the Trust, and any director, officer,
employee, agent or Affiliate thereof, and hold them harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments, and any other costs, liabilities, fees and expenses that the Trustee,
the Fiscal Agent, the Special Servicer, the Depositor, the Certificate
Administrator and the Trust may sustain arising from or as a result of the
willful misfeasance, bad faith or negligence in the performance of any of the
Primary Servicer's duties under this Agreement or the Primary Servicing
Agreement or by reason of negligent disregard of the Primary Servicer's
obligations and duties hereunder or thereunder (including a breach of such
obligations a substantial motive of which is to obtain an economic advantage
from being released from such obligations), and if in any such situation the
Primary Servicer is replaced, the Primary Servicer agrees that the amount of
such claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor primary servicer.
The Trustee, the Fiscal Agent, the Special Servicer, the Depositor or the
Certificate Administrator, as applicable, shall immediately notify such Primary
Servicer if a claim is made by any Person with respect to this Agreement or the
related Primary Servicing Agreement, the Nationwide Pooled Mortgage Loans
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entitling the Trustee, the Fiscal Agent, the Special Servicer, the Depositor,
the Certificate Administrator or the Trust to indemnification under this
Section, whereupon such Primary Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent,
the Special Servicer, the Depositor or the Certificate Administrator, as
applicable) and pay all expenses in connection therewith, including counsel
fees, and promptly pay, discharge and satisfy any judgment or decree which may
be entered against the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor and/or the Certificate Administrator, as applicable, in respect of
such claim. Any failure to so notify the Primary Servicer shall not affect any
rights the Trustee, the Fiscal Agent, the Special Servicer, the Depositor, the
Certificate Administrator or the Trust may have to indemnification under this
Agreement, the Primary Servicing Agreement or otherwise, unless the Primary
Servicer's defense of such claim is materially prejudiced thereby. Such
indemnification shall survive the termination of this Agreement and the Primary
Servicing Agreement and the resignation or termination of the applicable Master
Servicer, the Fiscal Agent, the Special Servicer, the Certificate Administrator
and/or the Trustee. Any expenses incurred or indemnification payments made by
the Primary Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Primary Servicer was not culpable or that the Primary Servicer did not
act with willful misfeasance, bad faith or negligence.
(m) The parties to this Agreement acknowledge that the Primary Servicer
has executed an undertaking, a copy of which is attached hereto as Exhibit P, in
which the Primary Servicer has agreed to the obligations purported to be imposed
on it under Section 3.22(l). The parties to this Agreement agree that the
Primary Servicer shall be a third-party beneficiary of Section 3.22(l) to the
extent of the rights granted to the Primary Servicer under such Section.
SECTION 3.23. 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 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative; provided that, subject to the last sentence of
this Section 3.23(a), and the acquisition by ARCap CMBS Fund II REIT, Inc. of
the Certificates of the Controlling Class, ARCap CMBS Fund II REIT, Inc. shall
serve as the initial Controlling Class Representative. Upon (i) the receipt by
the Certificate Administrator of written requests for the selection of a
successor 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 Certificate Administrator that the Controlling
Class has changed, the Certificate Administrator 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 Certificate Administrator
or identified thereto by the Depositary or the Depositary Participants, the
Certificate Owners) of the Controlling Class that they may select a Controlling
Class Representative. Such notice shall set forth the process established by the
Certificate Administrator for selecting a Controlling Class Representative,
which process shall include the designation of the Controlling Class
Representative by the Majority Controlling Class Certificateholder(s) by a
writing delivered to the Certificate Administrator. No appointment of any Person
as a successor Controlling Class Representative shall be effective until such
Person provides the Certificate Administrator with (i) written confirmation of
its acceptance of such appointment, (ii) written confirmation of its agreement
to keep confidential, for so long as reports are required to be filed with
respect to the Trust under Section 15(d) of the Exchange Act, all information
received by it with respect to the Trust and its assets that has not been filed
with the Commission, (iii) an address and facsimile number for the delivery of
notices and other correspondence and (iv) 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 facsimile numbers).
(b) Within ten Business Days (or as soon thereafter as practicable if
the Controlling Class consists of Book-Entry Certificates) of any change in the
identity of the Controlling Class Representative of which a Responsible Officer
of the Certificate Administrator has actual knowledge, the Certificate
Administrator shall deliver to each of the Trustee, the Master Servicers and the
Special Servicer the identity of the Controlling Class Representative and a list
of
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each Holder (or, in the case of Book-Entry Certificates, to the extent actually
known to a Responsible Officer of the Certificate Administrator or identified
thereto by the Depositary or the Depositary Participants, each Certificate
Owner) of the Controlling Class, including, in each case, names and addresses.
The Certificate Administrator shall also deliver such information (of which a
Responsible Officer of the Certificate Administrator has actual knowledge) to a
Master Servicer or the Special Servicer promptly upon request therefor by such
Master Servicer or the Special Servicer, as the case may be. With respect to
such information, the Certificate Administrator shall be entitled to
conclusively rely on information provided to it by the Holders (or, in the case
of Book-Entry Certificates, subject to Section 5.06, by the Depositary or the
Certificate Owners) of such Certificates, and the Master Servicers and the
Special Servicer shall each be entitled to rely on such information provided by
the Certificate Administrator with respect to any obligation or right hereunder
that such Master Servicer or the Special Servicer, as the case may be, 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 Certificate Administrator shall notify the other parties to
this Agreement of such event.
(c) A Controlling Class Representative may at any time resign as such
by giving written notice to the Certificate Administrator, the Trustee, the
Special Servicer, each Master Servicer and 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 Certificate Administrator, the
Trustee, the Special Servicer, each Master Servicer and such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected pursuant
to this Section 3.23, 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 Certificate Administrator
and each other party to this Agreement and each 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
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Certificate
Administrator, the Trustee, the applicable Master Servicer and the Special
Servicer, whereupon (if the Special Servicer, a Master Servicer, the Certificate
Administrator, the Trustee, the Fiscal Agent or the Trust 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 at issue, and (ii)
there is no potential for the Special Servicer, a Master Servicer, the
Certificate Administrator, the Trustee, the Fiscal Agent or the Trust to be an
adverse party in such action as regards the Controlling Class Representative),
the Special Servicer on behalf of the Trust shall, subject to Section 6.03,
assume the defense of any such claim against the Controlling Class
Representative; provided, however, that no judgment against the Controlling
Class Representative shall be payable out of the Trust Fund. This provision
shall survive the termination of this Agreement and the termination or
resignation of the Controlling Class Representative.
SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) Subject to Section 3.24(c), the Special Servicer shall prepare a
report (the "Asset Status Report") recommending the taking of certain actions
for each Serviced Mortgage Loan that becomes a Specially Serviced Mortgage Loan
and deliver such Asset Status Report to the Controlling Class Representative and
the applicable Master Servicer not later than 45 days after the servicing of
such Serviced Mortgage Loan is transferred to the Special Servicer. Such Asset
Status Report shall set forth the following information to the extent reasonably
determinable:
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(i) a summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer (including without limitation by
reason of any Phase I Environmental Assessment and any additional
environmental testing contemplated by Section 3.09(c)), consistent with the
Servicing Standard, that are applicable to the exercise of remedies set
forth herein and to the enforcement of any related guaranties or other
collateral for the related Specially Serviced Mortgage Loan and whether
outside legal counsel has been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property or Mortgaged Properties;
(iv) a summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the calculation
thereof (which the Special Servicer may satisfy by providing a copy of the
most recently obtained Appraisal); and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If (i) the Controlling Class Representative affirmatively approves in
writing an Asset Status Report, (ii) after ten Business Days from receipt of an
Asset Status Report the Controlling Class Representative does not object to such
Asset Status Report or (iii) within ten Business Days after receipt of an Asset
Status Report the Controlling Class Representative objects to such Asset Status
Report and the Special Servicer makes a determination in accordance with the
Servicing Standard that such objection is not in the best interest of all the
Certificateholders (and, if affected, any Serviced Non-Pooled Mortgage Loan
Noteholder), all as a collective whole, the Special Servicer shall take the
recommended actions described in the Asset Status Report. If within ten Business
Days after receipt of an Asset Status Report the Controlling Class
Representative objects to such Asset Status Report and the Special Servicer does
not make a determination in accordance with the Servicing Standard that such
objection is not in the best interest of all the Certificateholders (and, if
affected, any Serviced Non-Pooled Mortgage Loan Noteholder), all as a collective
whole, then (subject to Section 3.24(c)) the Special Servicer shall revise such
Asset Status Report as soon as practicable thereafter, but in no event later
than 30 days after the objection to the Asset Status Report by the Controlling
Class Representative. The Special Servicer shall, subject to Section 3.24(c),
revise such Asset Status Report as provided in the prior sentence until the
earliest of (a) the delivery by the Controlling Class Representative of an
affirmative approval in writing of such revised Asset Status Report, (b) the
failure of the Controlling Class Representative to disapprove such revised Asset
Status Report in writing within ten (10) Business Days of its receipt thereof;
or (c) the passage of ninety (90) days from the date of preparation of the
initial version of the Asset Status Report. Following the earliest of such
events, the Special Servicer shall implement the recommended action as outlined
in the most recent version of such Asset Status Report (provided that the
Special Servicer shall not take any action that is contrary to applicable law or
the terms of the applicable Mortgage Loan Documents). The Special Servicer may,
from time to time, subject to Section 3.24(c), modify any Asset Status Report it
has previously delivered and implement the new action in such revised report so
long as such revised report has been prepared, reviewed and either approved or
not rejected as provided above.
Notwithstanding the prior paragraph, the Special Servicer may take any
action set forth in an Asset Status Report before the expiration of the ten (10)
Business Day period during which the Controlling Class Representative may reject
such report if (A) the Special Servicer has reasonably determined that failure
to take such action would materially and adversely affect the interests of the
Certificateholders (and, if affected, any Serviced Non-Pooled Mortgage Loan
Noteholder), all as a collective whole, and (B) it has made a reasonable effort
to contact the Controlling Class Representative. The Special Servicer may not
take any action inconsistent with an Asset Status Report that has been adopted
as provided above, unless such action would be required in order to act in
accordance with the Servicing
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Standard. If the Special Servicer takes any action inconsistent with an Asset
Status Report that has been adopted as provided above, the Special Servicer
shall promptly notify the Controlling Class Representative of such inconsistent
action and provide a reasonably detailed explanation of the reasons therefor.
The Special Servicer shall deliver to the applicable Master Servicer,
the Controlling Class Representative and each Rating Agency a copy of each Asset
Status Report that has been adopted as provided above, in each case with
reasonable promptness following such adoption. The Special Servicer shall
deliver to the applicable Master Servicer, the Controlling Class Representative
and each Rating Agency any comparable report contemplated by the final sentence
of Section 3.24(c).
(b) In addition, notwithstanding anything in any other Section of this
Agreement to the contrary, but in all cases subject to Section 3.24(c), the
Special Servicer will not be permitted to take, or consent to the applicable
Master Servicer's taking, any of the actions identified in clauses (i) through
(x) of this sentence not otherwise specifically covered by an approved Asset
Status Report, unless and until the Special Servicer has notified the
Controlling Class Representative in writing of the Special Servicer's intent to
take or permit the particular action and the Controlling Class Representative
has consented (or has failed to object) thereto in writing within ten Business
Days of having been notified thereof in writing and having been provided with
all reasonably requested information with respect thereto (or, in the case of a
proposed action for which the applicable Master Servicer has requested approval
from the Special Servicer, within such shorter period during which the Special
Servicer is initially entitled to withhold consent without being deemed to have
approved the action):
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an Administered REO Property) of the ownership of
the property or properties securing any Specially Serviced Mortgage Loan as
comes into and continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges) or any non-monetary term (excluding the waiver of any
"due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed in
clause (ix) below) of (A) any Performing Serviced Mortgage Loan that has a
principal balance of $2,500,000 or more (or, if the proposed
modification/waiver is an extension of maturity or a waiver of Post-ARD
Additional Interest under the circumstances contemplated by Section 3.20(e),
any such Mortgage Loan without regard to balance) or (B) any Specially
Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any determination to bring an Administered REO Property into
compliance with applicable environmental laws or to otherwise address
Hazardous Materials located at an Administered REO Property;
(v) any release of collateral for any Serviced Mortgage Loan
(except that in circumstances where either (x) both (A) the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with an
outstanding principal balance of less than $2,500,000 and (B) the release of
collateral is not conditioned on obtaining the consent of the lender under
the related Mortgage Loan Documents, or (y) the release of collateral is
made upon a satisfaction of the subject Serviced Mortgage Loan, the consent
of (or failure to object by) the Controlling Class Representative shall not
constitute a condition to the taking of or consent to such action by the
Special Servicer but the Special Servicer shall deliver notice of such
action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action);
(vi) any acceptance of substitute or additional collateral for a
Serviced Mortgage Loan (except that in circumstances where either (x) the
relevant Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with
an outstanding principal balance of less than $2,500,000 or (y) the
acceptance of the
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substitute or additional collateral is not conditioned on obtaining the
consent of the lender, the consent of (or failure to object by) the
Controlling Class Representative shall not constitute a condition to the
taking of or consent to such action by the Special Servicer but the Special
Servicer shall deliver notice of such action to the Controlling Class
Representative simultaneously with or promptly following its taking or
consenting to such action);
(vii) any releases of any Letters of Credit, Reserve Funds or
other Additional Collateral with respect to any Mortgaged Property securing
a Serviced Mortgage Loan (except that in circumstances where either (x) the
relevant Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with
a principal balance of less than $2,500,000 or (y) the release of the
applicable Letter of Credit, Reserve Funds or Additional Collateral is not
conditioned on obtaining the consent of the lender, the consent of (or
failure to object by) the Controlling Class Representative shall not
constitute a condition to the taking of or consent to such action by the
Special Servicer but the Special Servicer shall deliver notice of such
action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action);
(viii) any termination or replacement, or consent to the
termination or replacement, of a property manager with respect to any
Mortgaged Property securing a Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with a principal balance of less than $2,500,000, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such action
by the Special Servicer but the Special Servicer shall deliver notice of
such action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action) or any
modification, waiver or amendment of any franchise or similar agreement, or
any execution of a new franchise or similar agreement, with respect to any
hospitality property;
(ix) any approval of the assignment of the Mortgaged Property
securing any Serviced Mortgage Loan to and assumption of such Serviced
Mortgage Loan by another Person, any waiver of a "due-on-sale" clause in any
Mortgage Loan, any approval of a further encumbrance of the Mortgaged
Property securing any Serviced Mortgage Loan or any waiver of a
"due-on-encumbrance" clause in any Serviced Mortgage Loan (except that in
circumstances where the relevant Serviced Mortgage Loan is a Performing
Serviced Mortgage Loan with principal balance of less than $2,500,000, the
consent of (or failure to object by) the Controlling Class Representative
shall not constitute a condition to the taking of or consent to such action
by the Special Servicer but the Special Servicer shall deliver notice of
such action to the Controlling Class Representative simultaneously with or
promptly following its taking or consenting to such action); and
(x) any determination as to whether any type of property-level
insurance is required under the terms of any Serviced Mortgage Loan, is
available at commercially reasonable rates, is available for similar types
of properties in the area in which the related Mortgaged Property is located
or any other determination or exercise of discretion with respect to
property-level insurance (except that in circumstances where the relevant
Serviced Mortgage Loan is a Performing Serviced Mortgage Loan with a
principal balance of less than $2,500,000, the consent of (or failure to
object by) the Controlling Class Representative shall not constitute a
condition to the taking of or consent to such action by the Special Servicer
but the Special Servicer shall deliver notice of such action to the
Controlling Class Representative simultaneously with or promptly following
its taking or consenting to such action);
provided that, in the event that the Special Servicer determines that immediate
action is necessary to protect the interests of the Certificateholders and any
Serviced Non-Pooled Mortgage Loan Noteholder (as a collective whole), the
Special Servicer may take any such action without waiting for the Controlling
Class Representative's response.
In addition, subject to Section 3.24(c), the Controlling Class
Representative may direct the Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
with respect to the servicing and administration of Specially Serviced Pooled
Mortgage Loans and/or Administered REO
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Properties or as to which provision is otherwise made herein. Upon reasonable
request, the Special Servicer shall provide the Controlling Class Representative
with any information in the Special Servicer's possession with respect to such
matters, including, without limitation, its reasons for determining to take a
proposed action.
(c) Notwithstanding anything herein to the contrary: (i) the Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from any Controlling Class Representative
prior to acting (and provisions of this Agreement requiring such consultation,
consent or approval shall be of no effect) during the period following any
resignation or removal of a Controlling Class Representative and before a
replacement is selected; and (ii) no advice, direction or objection from or by
the Controlling Class Representative, as contemplated by Section 3.24(a) or any
other provision of this Agreement, may (and the Special Servicer shall ignore
and act without regard to any such advice, direction or objection that the
Special Servicer has determined, in its reasonable, good faith judgment, would):
(A) require or cause the Special Servicer to violate applicable law, the terms
of any Mortgage Loan or any other Section of this Agreement, including the
Special Servicer's obligation to act in accordance with the Servicing Standard,
(B) result in an Adverse REMIC Event with respect to any REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool, (C)
expose the Trust, the Depositor, a Master Servicer, the Special Servicer, the
Fiscal Agent, the Certificate Administrator, the Trustee or any of their
respective Affiliates, members, managers, officers, directors, employees or
agents, to any material claim, suit or liability or (D) materially expand the
scope of a Master Servicer's or Special Servicer's responsibilities under this
Agreement.
(d) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Controlling Class Representative may have
special relationships and interests that conflict with those of Holders of one
or more Classes of Certificates; (ii) the Controlling Class Representative may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Representative may take actions that favor interests of the Holders of the
Controlling Class over the interests of the Holders of one or more other Classes
of Certificates; and (v) the 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.
SECTION 3.25. Certain Matters Regarding the Holder of the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan.
(a) Unless the applicable Master Servicer or the Special Servicer has
received notice that the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Noteholder is the related Borrower or an Affiliate of the related Borrower, the
applicable Master Servicer or the Special Servicer shall give the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Noteholder or its representative prompt
notice of any determination by the applicable Master Servicer or the Special
Servicer to take any of the actions with respect to the 00 Xxxx Xxxxx Loan Group
that are described in any of clauses (i) through (x) of Section 2(e) of the 11
Penn Plaza Intercreditor Agreement, which Noteholder shall have the right to
consult with the applicable Master Servicer or the Special Servicer with respect
to such action. Notwithstanding the rights of the 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Noteholder to consult on such matters, in no event will the
applicable Master Servicer or the Special Servicer, as applicable, be obligated
to act upon the direction, advice or objection of the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Noteholder or its representative in connection
therewith.
(b) In satisfaction of the remittance obligations set forth in Section
2(c) of the 11 Penn Plaza Intercreditor Agreement, any remittance of payments
received with respect to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
required to be made by the applicable Master Servicer for the 11 Penn Plaza
Mortgaged Property to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Noteholder shall (notwithstanding any other provision of this Agreement to the
contrary) be made to the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Noteholder, in accordance with the 00 Xxxx Xxxxx Intercreditor Agreement, on the
Business Day immediately after receipt of such payments.
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(c) The applicable Master Servicer for the 00 Xxxx Xxxxx Loan Group
shall deliver the reports, information and notices of default contemplated by
Section 2(b) of the 11 Penn Plaza Intercreditor Agreement.
(d) The applicable Master Servicer for the 11 Penn Plaza Loan Group
shall be entitled to exercise the rights afforded to the master servicer
referred to in Section 2(d) of the 11 Penn Plaza Intercreditor Agreement.
(e) Each of the applicable Master Servicer and the Special Servicer for
the 11 Penn Plaza Loan Group shall be entitled to exercise the rights afforded
to the master servicer or the special servicer, as the case may be, referred to
in Section 2(g) or Section 3 of the 11 Penn Plaza Intercreditor Agreement.
SECTION 3.26. [Reserved].
SECTION 3.27. Replacement of Special Servicer.
(a) Subject to Section 3.27(b), the Controlling Class Representative
may remove the existing Special Servicer hereunder (with or without cause) and
appoint a successor to the existing Special Servicer; provided that if any such
removal is made without cause, then the costs of transferring the special
servicing responsibilities of the removed Special Servicer to a successor
thereto shall be paid by the Certificateholders of the Controlling Class and (B)
the Controlling Class Representative shall have delivered or caused to have been
delivered to each of the parties hereto a copy of the request for the rating
confirmation described in clause (i) of subsection (b) that constitutes a
condition to the effectiveness of the removal and/or appointment, simultaneously
with or promptly following the delivery of such request to the Rating Agencies.
(b) No removal of the Special Servicer and/or appointment of a
successor thereto pursuant to Section 3.27(a) shall be effective until: (i) the
Trustee shall have received (A) written confirmation from each Rating Agency for
the Rated Certificates that such removal and/or appointment will not result in
an Adverse Rating Event with respect to any Class of Rated Certificates rated by
such Rating Agency and (for so long as the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan is serviced and administered under this Agreement) from each
applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities that such removal and/or appointment will not result in an
Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities rated by such Rating Agency, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor to the
terminated Special Servicer, and (C) an Opinion of Counsel (which shall not be
an expense of the Trustee or the Trust) substantially to the effect that (1) the
removal of the terminated Special Servicer and/or the appointment of the Person
designated to serve as successor thereto is in compliance with this Section
3.27, (2) such designated Person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (3) the
Acknowledgment of Proposed Special Servicer, the form of which is attached
hereto as Exhibit I-2, has been duly authorized, executed and delivered by such
designated Person and (4) upon the execution and delivery of the Acknowledgment
of Proposed Special Servicer, such designated Person shall be bound by the terms
of this Agreement and, subject to customary bankruptcy and insolvency exceptions
and customary equity exceptions, this Agreement shall be enforceable against
such designated Person in accordance with its terms; and (ii) if the terminated
Special Servicer has been removed without cause, the Certificateholders of the
Controlling Class shall have delivered to the Trustee and the terminated Special
Servicer such Certificateholders' joint and several undertaking to pay any
expenses incurred by the Trustee and the terminated Special Servicer in
connection with the transfer of special servicing responsibilities to a
successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.27(a) shall
be deemed to have been so terminated simultaneously with the designated
successor's becoming the Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Collection Accounts of all of its accrued and
unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a),
and reimbursement from the successor to the terminated Special Servicer of all
outstanding Servicing Advances made by the terminated Special Servicer and all
unpaid Advance Interest accrued on such outstanding Servicing Advances (in which
case the successor to the terminated Special Servicer shall be deemed to have
made such Servicing Advances at the same
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time that the terminated Special Servicer had actually made them), (ii) the
terminated Special Servicer shall thereafter be entitled to Workout Fees, as and
to the extent expressly permitted by Section 3.11(c), and (iii) the terminated
Special Servicer shall continue to be entitled to the benefits of Section 6.03,
notwithstanding any such termination; and provided, further, that the terminated
Special Servicer shall continue to be obligated to pay (and entitled to receive)
all other amounts accrued to (or owing by) it under this Agreement on or prior
to the effective date of such termination. The terminated Special Servicer shall
cooperate with the Trustee and the replacement to the terminated Special
Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to this
Section 3.27, to the replacement to the terminated Special Servicer for
administration by it of all cash amounts that at the time are or should have
been credited by the terminated Special Servicer to the REO Account maintained
by it or to any Servicing Account or Reserve Account or should have been
delivered to the Master Servicers or that are thereafter received by or on
behalf of the terminated Special Servicer with respect to any Mortgage Loan or
REO Property.
SECTION 3.28. Application of Default Charges.
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to any Serviced Pooled Mortgage Loan (other
than the 11 Penn Plaza Pooled Mortgage Loan) or any REO Pooled Mortgage Loan
that is a successor thereto and (to the extent remitted to the applicable Master
Servicer by the Non-Trust Master Servicer) any and all Default Charges that are
actually received by or on behalf of the Trust with respect to the
Non-Trust-Serviced Pooled Mortgage Loan or successor REO Mortgage Loan shall be
applied for the following purposes and in the following order, in each case to
the extent of the remaining portion of such Default Charges:
first, to pay to the Fiscal Agent, the Trustee, the applicable Master
Servicer or the Special Servicer, in that order, any Advance Interest due
and owing to such party on outstanding Advances made thereby with respect to
such Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid to the
Fiscal Agent, the Trustee, the applicable Master Servicer or the Special
Servicer since the Closing Date with respect to such Pooled Mortgage Loan or
REO Pooled Mortgage Loan, as the case may be, which interest was paid from a
source other than Default Charges collected on such Pooled Mortgage Loan or
REO Pooled Mortgage Loan, as the case may be; and
third, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as follows: (A) if such Mortgage
Loan is the Non-Trust-Serviced Mortgage Loan, to the applicable Master
Servicer as Additional Master Servicing Compensation, in an amount equal to
the entirety of such remaining portion, or (B) if such Mortgage Loan is a
Serviced Mortgage Loan, on a pro rata basis: (i) to the applicable Master
Servicer as Additional Master Servicing Compensation, in an amount equal to
the product of such remaining portion and a fraction, the numerator of which
is the aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.28) accrued on such Mortgage Loan
while such Mortgage Loan was not a Specially Serviced Mortgage Loan and the
denominator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.28)
theretofore accrued on such Mortgage Loan, and (ii) to the Special Servicer
as Additional Special Servicing Compensation, in an amount equal to the
product of such remaining portion and a fraction, the numerator of which is
the aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.28) accrued on such Mortgage Loan
while such Mortgage Loan is a Specially Serviced Mortgage Loan and the
denominator of which is the aggregate amount of Default Charges (to the
extent not previously collected and applied under this Section 3.28)
theretofore accrued on such Mortgage Loan.
(b) Default Charges applied to reimburse the Trust pursuant to clause
second of Section 3.28(a) are intended to be available for distribution on the
Certificates pursuant to Section 4.01(a), subject to application pursuant to
Section 3.05(a) or 3.05(b) for any items payable out of general collections on
the Mortgage Pool. Default Charges applied to reimburse the Trust pursuant to
clause second of Section 3.28(a) shall be deemed to offset payments of Advance
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Interest in the chronological order in which it accrued with respect to the
subject Pooled Mortgage Loan or REO Pooled Mortgage Loan (whereupon such Advance
Interest shall thereafter be deemed to have been paid out of Default Charges).
(c) Any and all amounts otherwise distributable to the Trust as the
holder of the 11 Penn Plaza Pooled Mortgage Loan (or any successor REO Pooled
Mortgage Loan) or to the holder of the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan as Default Charges with respect to the 11 Penn Plaza Loan Group
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such amounts and as and to the
extent permitted under the 00 Xxxx Xxxxx Intercreditor Agreement:
first, to pay to the Fiscal Agent, the Trustee, the applicable
Master Servicer or the Special Servicer, in that order, that portion of
any Advance Interest due and owing to such party on outstanding
Servicing Advances made thereby with respect to the 11 Penn Plaza Loan
Group or any related REO Property that is allocable (which allocation
shall be made pro rata according to the respective outstanding
principal balances of the Mortgage Loans in the 00 Xxxx Xxxxx Loan
Group) to such Mortgage Loan;
second, either (x) in the case of the 11 Penn Plaza Pooled
Mortgage Loan, to pay to the Fiscal Agent, the Trustee or the
applicable Master Servicer, in that order, any Advance Interest due and
owing to such party on outstanding P&I Advances made thereby with
respect to the 11 Penn Plaza Pooled Mortgage Loan or (y) in the case of
the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan, to pay to one
or more designees of the holder of such Mortgage Loan any interest
similar to Advance Interest due and owing to such designee on any debt
service advances made thereby for the benefit of the holder of the 11
Penn Plaza Non-Pooled Pari Passu Companion Loan or any holders of any
11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities;
third, to reimburse the Trust for that portion of any Advance
Interest paid to the Fiscal Agent, the Trustee, the applicable Master
Servicer or the Special Servicer since the Closing Date with respect to
Servicing Advances made with respect to the 00 Xxxx Xxxxx Loan Group
and any related REO Property that is allocable (which allocation shall
be made pro rata according to the respective outstanding principal
balances of the Mortgage Loans in the 00 Xxxx Xxxxx Loan Group) to such
Mortgage Loan, which interest was paid from a source other than Default
Charges collected on the 11 Penn Plaza Loan Group;
fourth, either (x) in the case of the 11 Penn Plaza Pooled
Mortgage Loan, to reimburse the Trust for any Advance Interest paid to
the Fiscal Agent, the Trustee or the applicable Master Servicer since
the Closing Date with respect to P&I Advances made thereby with respect
to the 11 Penn Plaza Pooled Mortgage Loan, which interest was paid from
a source other than Default Charges collected on the 11 Penn Plaza Loan
Group, or (y) in the case of the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan, to reimburse the holder of such Mortgage Loan or its
designee for any interest similar to Advance Interest made for the
benefit of the holder of the 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan or any holders of any 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities since the Closing Date with respect to
such Mortgage Loan, which interest was paid from a source other than
Default Charges collected on the 11 Penn Plaza Loan Group; and
fifth, to pay any remaining portion of such Default Charges
(such remaining portion, "Net Default Charges") on a pro rata basis:
(i) to the applicable Master Servicer as Additional Master Servicing
Compensation, in an amount equal to the product of such remaining
portion and a fraction, the numerator of which is the aggregate amount
of Default Charges (to the extent not previously collected and applied
under this Section 3.28) accrued on the 11 Penn Plaza Loan Group while
the Mortgage Loans therein were not Specially Serviced Mortgage Loans
and the denominator of which is the aggregate amount of Default Charges
(to the extent not previously collected and applied under this Section
3.28) theretofore accrued on the 11 Penn Plaza Loan Group, and (ii) to
the Special Servicer as Additional Special Servicing Compensation, in
an amount equal to the product of such remaining portion and a
fraction, the numerator of which is the aggregate amount of Default
Charges (to the extent not previously collected and applied under this
Section 3.28) accrued on the 11 Penn Plaza Loan Group while the
Mortgage Loans therein were Specially Serviced Mortgage Loans and the
denominator of which is the
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aggregate amount of Default Charges (to the extent not previously
collected and applied under this Section 3.28) theretofore accrued on
the 11 Penn Plaza Loan Group.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Certificate Administrator shall
apply amounts on deposit in the Distribution Account 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 for such Distribution
Date:
(1) to make distributions of interest to the Holders of the respective
Classes of the Senior Certificates, up to an amount equal to, and pro rata
as among such Classes in accordance with, all Distributable Certificate
Interest in respect of each such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(2) to make distributions of principal to the Holders of the respective
Classes of the Class A Senior Certificates, allocable as among such Classes
of Certificateholders as provided below, up to an amount (not to exceed the
aggregate Class Principal Balance of such Classes of Certificates
outstanding immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date; and
(3) to make distributions to the Holders of the respective Classes of
the Class A Senior Certificates, up to an amount equal to, pro rata as among
such Classes of Certificateholders in accordance with, and in reimbursement
of, all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to each such Class of Certificates pursuant to Section
4.04(a) and not previously reimbursed.
(4) to make distributions of interest to the Holders of the Class A-J
Certificates, up to 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, if
any;
(5) after the Class Principal Balances of the Class A Senior
Certificates have been reduced to zero, to make distributions of principal
to the Holders of the Class A-J Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of 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 Senior
Certificates pursuant to clause (2) above);
(6) to make distributions to the Holders of the Class A-J Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(7) to make distributions of interest to the Holders of the Class B
Certificates, up to 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, if
any;
(8) after the Class Principal Balances of the Class A-J Certificates
have been reduced to zero, to make distributions of principal to the Holders
of the Class B Certificates, up to an amount (not to exceed the Class
Principal Balance of such Class of 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 Principal
Balance Certificates pursuant to any prior clause of this Section 4.01(a));
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(9) to make distributions to the Holders of the Class B Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(10) to make distributions of interest to the Holders of the Class C
Certificates, up to 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, if
any;
(11) after the Class Principal Balance of the Class B Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class C Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(12) to make distributions to the Holders of the Class C Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(13) to make distributions of interest to the Holders of the Class D
Certificates, up to 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, if
any;
(14) after the Class Principal Balance of the Class C Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class D Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(15) to make distributions to the Holders of the Class D Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(16) to make distributions of interest to the Holders of the Class E
Certificates, up to 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, if
any;
(17) after the Class Principal Balance of the Class D Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class E Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(18) to make distributions to the Holders of the Class E Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(19) to make distributions of interest to the Holders of the Class F
Certificates, up to 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, if
any;
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(20) after the Class Principal Balance of the Class E Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class F Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(21) to make distributions to the Holders of the Class F Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(22) to make distributions of interest to the Holders of the Class G
Certificates, up to 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, if
any;
(23) after the Class Principal Balance of the Class F Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class G Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(24) to make distributions to the Holders of the Class G Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(25) to make distributions of interest to the Holders of the Class H
Certificates, up to 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, if
any;
(26) after the Class Principal Balance of the Class G Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class H Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(27) to make distributions to the Holders of the Class H Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(28) to make distributions of interest to the Holders of the Class J
Certificates, up to 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, if
any;
(29) after the Class Principal Balance of the Class H Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class J Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
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(30) to make distributions to the Holders of the Class J Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(31) to make distributions of interest to the Holders of the Class K
Certificates, up to 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, if
any;
(32) after the Class Principal Balance of the Class J Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class K Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(33) to make distributions to the Holders of the Class K Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(34) to make distributions of interest to the Holders of the Class L
Certificates, up to 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, if
any;
(35) after the Class Principal Balance of the Class K Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class L Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(36) to make distributions to the Holders of the Class L Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(37) to make distributions of interest to the Holders of the Class M
Certificates, up to 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, if
any;
(38) after the Class Principal Balance of the Class L Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class M Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(39) to make distributions to the Holders of the Class M Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(40) to make distributions of interest to the Holders of the Class N
Certificates, up to 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, if
any;
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(41) after the Class Principal Balance of the Class M Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class N Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(42) to make distributions to the Holders of the Class N Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(43) to make distributions of interest to the Holders of the Class P
Certificates, up to 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, if
any;
(44) after the Class Principal Balance of the Class N Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class P Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(45) to make distributions to the Holders of the Class P Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
(46) to make distributions of interest to the Holders of the Class Q
Certificates, up to 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, if
any;
(47) after the Class Principal Balance of the Class P Certificates has
been reduced to zero, to make distributions of principal to the Holders of
the Class Q Certificates, up to an amount (not to exceed the Class Principal
Balance of such Class of 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 Principal Balance
Certificates pursuant to any prior clause of this Section 4.01(a));
(48) to make distributions to the Holders of the Class Q Certificates,
up to 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 pursuant to Section 4.04(a) and not previously reimbursed;
and
(49) to make distributions to the Holders of the Class R Certificates,
up to an amount equal to the excess, if any, of (A) the Available
Distribution Amount for such Distribution Date, over (B) the aggregate
distributions made in respect of the other Classes of Certificates on such
Distribution Date pursuant to the prior clauses of this Section 4.01(a).
Any distributions of interest made with respect to the Class X-1
Certificates or the Class X-2 Certificates on any Distribution Date pursuant to
clause (1) above shall be deemed to have been allocated among the respective
REMIC III Components of such Class of Certificates on a pro rata basis in
accordance with the respective amounts of Accrued Component Interest for such
REMIC III Components for such Distribution Date.
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On each Distribution Date prior to the earlier of (a) any Class A
Principal Distribution Cross-Over Date and (b) the Final Distribution Date, the
Certificate Administrator shall allocate the aggregate distributions of
principal on the Class A Senior Certificates contemplated by clause (2) above to
the Holders of the respective Classes of the Class A Senior Certificates as
follows:
(A) in the case of the Class A-1 Certificates, the lesser of (1)
the Principal Distribution Amount for such Distribution Date, and (2) the
Class Principal Balance of the Class A-1 Certificates immediately prior to
such Distribution Date;
(B) in the case of the Class A-2 Certificates, after the Class
Principal Balance of the Class A-1 Certificates has been reduced to zero,
the lesser of (1) the Principal Distribution Amount for such Distribution
Date, reduced by any portions of such amount that are allocable to the Class
A-1 Certificates as described in the immediately preceding clause (A) and
(2) the Class Principal Balance of the Class A-2 Certificates immediately
prior to such Distribution Date;
(C) in the case of the Class A-3 Certificates, after the Class
Principal Balances of the Class A-1 and Class A-2 Certificates have been
reduced to zero, the lesser of (1) the Principal Distribution Amount for
such Distribution Date, reduced by any portions of such amount that are
allocable to the Class A-1 and/or Class A-2 Certificates and as described in
the immediately preceding clauses (A) and (B) and (2) the Class Principal
Balance of the Class A-3 Certificates immediately prior to such Distribution
Date;
(D) in the case of the Class A-4 Certificates, after the Class
Principal Balances of the Class A-1, Class A-2 and Class A-3 Certificates
have been reduced to zero, the lesser of (1) the Principal Distribution
Amount for such Distribution Date, reduced by any portions of such amount
that are allocable to the Class A-1, Class A-2 and/or Class A-3 Certificates
and as described in the immediately preceding clauses (A), (B) and (C) and
(2) the Class Principal Balance of the Class A-4 Certificates immediately
prior to such Distribution Date;
(E) in the case of the Class A-5 Certificates, after the Class
Principal Balances of the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates have been reduced to zero, the lesser of (1) the Principal
Distribution Amount for such Distribution Date, reduced by any portions of
such amount that are allocable to the Class A-1, Class A-2, Class A-3 and/or
Class A-4 Certificates and as described in the immediately preceding clauses
(A), (B), (C) and (D) and (2) the Class Principal Balance of the Class A-5
Certificates immediately prior to such Distribution Date; and
(F) in the case of the Class A-6 Certificates, after the Class
Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates have been reduced to zero, the lesser of (1) the
Principal Distribution Amount for such Distribution Date, reduced by any
portions of such amount that are allocable to the Class X-0, Xxxxx X-0,
Class A-3, Class A-4 and/or Class A-5 Certificates and as described in the
immediately preceding clauses (A), (B), (C), (D) and (E) and (2) the Class
Principal Balance of the Class A-6 Certificates immediately prior to such
Distribution Date.
On each Distribution Date coinciding with or following the Class A Principal
Distribution Cross-Over Date, and in any event on the Final Distribution Date,
the Certificate Administrator shall allocate the aggregate distributions of
principal on the Class A Senior Certificates contemplated by clause (2) above to
the Holders of the respective Classes of such Certificates on a pro rata basis
in accordance with their respective Class Principal Balances immediately prior
to such Distribution Date, in each case up to the Class Principal Balance of
such Class.
(b) Funds on deposit in the Distribution Account on each Distribution
Date that represent Prepayment Premiums or Yield Maintenance Charges Received by
the Trust with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan
during the related Collection Period, in each case net of any Liquidation Fees
payable therefrom, shall be distributable as follows. On each Distribution Date,
the Certificate Administrator shall withdraw from the Distribution Account and
distribute to the Holders of each Class of the Class A-1, Class A-2, Class X-0,
Xxxxx X-0,
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Class A-5, Class A-6, Class A-J, Class B, Class C, Class D, Class E, Class F,
Class G and/or Class H Certificates to whom the Certificate Administrator is to
make a distribution in respect of principal pursuant to Section 4.01(a) an
amount equal to the product of (i) full amount of the funds representing each
respective Prepayment Premium or Yield Maintenance Charge Received by the Trust
with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan during the
related Collection Period, in each case net of any Liquidation Fees payable
therefrom, multiplied by (ii) a fraction (which in no event may be greater than
1.0 or less than 0.0), the numerator of which is equal to the excess, if any, of
the Pass-Through Rate for such Class of Certificates for the Interest Accrual
Period related to such Distribution Date over the relevant Discount Rate, and
the denominator of which is equal to the excess, if any, of the Mortgage Rate
for such Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may be,
over the relevant Discount Rate (provided that if the denominator of such
fraction is equal to zero, such fraction shall be deemed to equal 0.0), and
further multiplied by (iii) a fraction, the numerator of which is equal to the
amount of principal to be distributed on such Class of Principal Balance
Certificates on such Distribution Date pursuant to Section 4.01(a) and the
denominator of which is equal to the aggregate amount of principal to be
distributed on the Principal Balance Certificates on such Distribution Date. If
such Distribution Date occurs prior to January 2010, the Certificate
Administrator shall withdraw from the Distribution Account any funds on deposit
in the Distribution Account that represent the remaining portion of such
Prepayment Premium or Yield Maintenance Charge and distribute (i) 75.0% of such
funds to the Holders of the Class X-1 Certificates and (ii) 25.0% of such funds
to the Holders of the Class X-2 Certificates. If such Distribution Date occurs
in or after January 2010, the Certificate Administrator shall withdraw from the
Distribution Account any funds on deposit in the Distribution Account that
represent the remaining portion of such Prepayment Premium or Yield Maintenance
Charge and distribute 100% of such funds to the Holders of the Class X-1
Certificates. Any funds distributed on a Class of Certificates in respect of any
Prepayment Premium or Yield Maintenance Charge pursuant to this Section 4.01(b)
shall constitute an "Additional Yield Amount" for such Class of Certificates.
For purposes of the immediately preceding paragraph, the relevant
"Discount Rate" in connection with any Prepayment Premium or Yield Maintenance
Charge collected on any prepaid Pooled Mortgage Loan or REO Pooled Mortgage Loan
and distributable on any Distribution Date shall be a rate per annum equal to
(i) if a discount rate was used in the calculation of the applicable Prepayment
Premium or Yield Maintenance Charge pursuant to the terms of the relevant Pooled
Mortgage Loan or REO Pooled Mortgage Loan, as the case may be, such discount
rate (as reported by the applicable Master Servicer), converted (if necessary)
to a monthly equivalent yield, or (ii) if a discount rate was not used in the
calculation of the applicable Prepayment Premium or Yield Maintenance Charge
pursuant to the terms of the relevant Pooled Mortgage Loan or REO Pooled
Mortgage Loan, as the case may be, the yield calculated by the linear
interpolation of the yields (as reported under the heading "U.S. Government
Securities/Treasury Constant Maturities" in Federal Reserve Statistical Release
H.15 (519) published by the Federal Reserve Board for the week most recently
ended before the date of the relevant prepayment (or deemed prepayment) of U.S.
Treasury constant maturities with a maturity date, one longer and one shorter,
most nearly approximating the related Maturity Date (or, in the case of a Pooled
Mortgage Loan that is, or an REO Pooled Mortgage Loan that was, an ARD Mortgage
Loan, the related Anticipated Repayment Date), such interpolated yield converted
to a monthly equivalent yield. If Federal Reserve Statistical Release H.15 (519)
is no longer published, the Certificate Administrator shall select a comparable
publication as the source of the applicable yields of U.S. Treasury constant
maturities.
Any Additional Yield Amount distributed in respect of the Class X-1
Certificates on any Distribution Date shall be deemed to have been distributed
in respect of the respective REMIC III Components of the Class X-1 Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant to Section
4.01(i). Any Additional Yield Amount distributed in respect of the Class X-2
Certificates on any Distribution Date shall be deemed to have been distributed
in respect of the respective REMIC III Components of the Class X-2 Certificates,
on a pro rata basis in accordance with the respective amounts by which the
Component Notional Amounts of such REMIC III Components were reduced on such
Distribution Date by deemed distributions of principal pursuant to Section
4.01(i) or, in the absence of any such reduction, in accordance with the
Component Notional Amount of such REMIC III Components.
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(c) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account any amounts then on deposit in the Class
V Sub-Account of the Distribution Account that represent Post-ARD Additional
Interest collected or deemed collected in respect of the Pooled Mortgage Loans
that are ARD Mortgage Loans (or any successor REO Mortgage Loans with respect
thereto) during the related Collection Period and shall distribute such amounts
to the Holders of the Class V Certificates.
(d) All distributions made with respect to each Class of Certificates
on each Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to each
Class of Certificates 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 Certificate Administrator 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 Principal Balance
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate
pursuant to Section 4.04(a)) 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 Certificate Administrator was
subsequently notified in writing. If such check is returned to the Certificate
Administrator, then the Certificate Administrator, 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 Certificate Administrator shall be set aside by the Certificate
Administrator and held uninvested in trust and credited to the account of the
appropriate Holder. The 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
Certificate Administrator has not, after having taken such reasonable steps,
located the related Holder by the second anniversary of the initial sending of a
check, the Certificate Administrator shall, subject to applicable law,
distribute the unclaimed funds to the Class R Certificateholders.
(e) 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 for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Administrator, the Certificate Registrar, the Depositor, the Special
Servicer or the Master Servicers shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law. The Certificate
Administrator and the Depositor shall perform their respective obligations under
each of the Letter of Representations among the Depositor, the Certificate
Administrator and the initial Depository dated as of the Closing Date and
pertaining to the Book-Entry Certificates, a copy of which Letters of
Representation are attached hereto as Exhibit B.
(f) The rights of the Certificateholders to receive distributions from
the proceeds of the Trust Fund with respect to 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 with respect to amounts properly previously
distributed on the Certificates.
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(g) Except as otherwise provided in Section 9.01, whenever the
Certificate Administrator receives written notification of or expects that the
final distribution with respect to any Class of Certificates (determined, in the
case of a Class of Principal Balance Certificates, without regard to any
possible future reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to such Class of Certificates pursuant to Section
4.04(a)) will be made on the next Distribution Date, the Certificate
Administrator shall, no later than the second Business Day prior to such
Distribution Date, mail to each Holder of record of such Class of Certificates
on such date a notice to the effect that:
(i) the Certificate Administrator 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
the end of the Interest Accrual Period for such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate non-
tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Certificate Administrator 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, then the Certificate Administrator, 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 non-tendering Certificateholders following the first anniversary
of the delivery of such second notice thereto 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 as to which
notice has been given pursuant to this Section 4.01(g) shall not have been
surrendered for cancellation by the second anniversary of the delivery of the
second notice, the Certificate Administrator shall, subject to applicable law,
distribute to the Class R Certificateholders all unclaimed funds and other
assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Certificate Administrator shall comply with all federal withholding requirements
respecting payments to Certificateholders of interest or original issue discount
that the Certificate Administrator reasonably believes are applicable under the
Code. The consent of Certificateholders shall not be required for such
withholding. If the Certificate Administrator does withhold any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Certificate
Administrator shall indicate the amount withheld to such Certificateholders.
(i) All distributions made in respect of each Class of Principal
Balance Certificates on each Distribution Date (including the Final Distribution
Date) pursuant to Section 4.01(a) or Section 4.01(b) shall be deemed to have
first been distributed from REMIC II to REMIC III with respect to the
Corresponding REMIC II Regular Interest(s) for such Class of Certificates; and
all distributions made with respect to each Class of Interest Only Certificates
on each Distribution Date pursuant to Section 4.01(a) or Section 4.01(b), and
allocable to any particular REMIC III Component of such Class of Certificates,
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of the Corresponding REMIC II Regular Interest for such REMIC III
Component. In each case, if such distribution on any such Class of Certificates
was a distribution of accrued interest, of principal, of additional interest (in
the form of one or more Additional Yield Amounts) or in reimbursement of any
Realized Losses and Additional Trust Fund Expenses previously allocated to such
Class of Certificates, then the corresponding distribution deemed to be made on
a REMIC II Regular Interest pursuant to the preceding sentence (and, if
applicable the next paragraph) shall be deemed to also be, respectively, a
distribution of accrued interest, of principal, of additional interest (in the
form of one or more Additional Yield Amounts) or in reimbursement of any
Realized Losses and Additional Trust Fund Expenses previously allocated to REMIC
III in respect of such REMIC II Regular Interest.
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If two or more REMIC II Regular Interests are all Corresponding REMIC
II Regular Interests with respect to the same Class of Principal Balance
Certificates (such as but not limited to the group of REMIC II Regular Interests
consisting of REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2
and REMIC II Regular Interest A-1-3), then (i) deemed distributions of accrued
interest made on such REMIC II Regular Interests shall be allocated among such
REMIC II Regular Interests on a pro rata basis in accordance with the respective
amounts of accrued interest deemed payable on each such REMIC II Regular
Interest for the subject Distribution Date; (ii) deemed distributions of
principal made on such REMIC II Regular Interests shall be allocated
sequentially to such REMIC II Regular Interests in ascending order of the
numerical portion of their alphanumeric designations that follows the portion
thereof that is the same as the alphabetic or alphanumeric designation of the
Class of Principal Balance Certificates for which such REMIC II Regular
Interests constitute Corresponding REMIC II Regular Interests (for example, in
the case of the group of REMIC II Regular Interests consisting of REMIC II
Regular Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II Regular
Interest A-1-3, first, to REMIC II Regular Interest A-1-1; second, to REMIC II
Regular Interest A-1-2; and, third, to REMIC II Regular Interest A-1-3), in each
case until the Uncertificated Principal Balance of such REMIC II Regular
Interest is reduced to zero; (iii) deemed distributions of additional interest
(in the form of one or more Additional Yield Amounts) made on such REMIC II
Regular Interests shall be allocated among such REMIC II Regular Interests on a
pro rata basis in accordance with the respective amounts of principal allocated
to each such REMIC II Regular Interest pursuant to the immediately preceding
clause (ii) for the subject Distribution Date; and (iv) deemed distributions in
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses made on such REMIC II Regular Interests, shall be allocated among such
REMIC II Regular Interests on a pro rata basis in accordance with the respective
amounts deemed reimbursable with respect thereto for the subject Distribution
Date.
The actual distributions made by the Certificate Administrator on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been so made
from the amounts deemed distributed with respect to the REMIC II Regular
Interests on such Distribution Date pursuant to this Section 4.01(i).
Notwithstanding the deemed distributions on the REMIC II Regular Interests
described in this Section 4.01(i), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
(j) On each Distribution Date, including the Final Distribution Date,
the Available Distribution Amount for such date shall be deemed to have first
been distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, in each case to the extent of the remaining portions of such funds,
for the following purposes and in the following order of priority:
(i) as deemed distributions of interest with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest with respect to
each REMIC I Regular Interest for such Distribution Date and, to the extent
not previously deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal with respect to all the
REMIC I Regular Interests, up to an amount equal to, and pro rata in
accordance with, as to each REMIC I Regular Interest, the portion of the
Principal Distribution Amount for such Distribution Date attributable to the
related Pooled Mortgage Loan(s) or REO Pooled Mortgage Loan(s); and
(iii) as deemed distributions with respect to all the REMIC I
Regular Interests, up to an amount equal to, pro rata in accordance with,
and in reimbursement of, any Realized Losses and Additional Trust Fund
Expenses previously allocated to each REMIC I Regular Interest (with
compounded interest).
The portion of each Prepayment Premium and Yield Maintenance Charge
that is distributed to any Class of Regular Interest Certificates on any
Distribution Date shall, in each case, be deemed to have been distributed from
REMIC I to REMIC II in respect of the REMIC I Regular Interest corresponding to
the prepaid Pooled Mortgage Loan or REO Pooled Mortgage Loan, as the case may
be, in respect of which such Prepayment Premium or Yield Maintenance Charge was
received or deemed received.
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The actual distributions made by the Certificate Administrator on each
Distribution Date in respect of the REMIC III Certificates pursuant to Section
4.01(a) or Section 4.01(b), as applicable, shall be deemed to have been so made
from the amounts deemed distributed with respect to the REMIC I Regular
Interests on such Distribution Date pursuant to this Section 4.01(j).
Notwithstanding the deemed distributions on the REMIC I Regular Interests
described in this Section 4.01(j), actual distributions of funds from the
Distribution Account shall be made only in accordance with Section 4.01(a) or
Section 4.01(b), as applicable.
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting.
(a) Certificate Administrator Reports and Information. Based solely on
information provided to the Certificate Administrator by the Master Servicers
pursuant to Sections 3.12, 4.02(c) and 4.02(f), the Certificate Administrator
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request by a Privileged Person who is
a Certificateholder or Certificate Owner or by any Privileged Person who cannot
receive a copy electronically, by first class mail) to each Privileged Person a
statement substantially in the form of, and containing the information set forth
in, Exhibit D hereto (the "Certificate Administrator Report"), detailing the
distributions on such Distribution Date and the performance, both in the
aggregate and individually to the extent available, of the Pooled Mortgage Loans
and the Mortgaged Properties; provided that the Certificate Administrator need
not deliver to the Depositor, the Master Servicers, the Special Servicer, the
Underwriters, the Rating Agencies or the Controlling Class Representative any
Certificate Administrator Report that has been made available to such Person via
the Certificate Administrator's internet website as provided below; and
provided, further, that the Certificate Administrator has no affirmative
obligation to discover the identities of Certificate Owners and need only react
to Persons claiming to be Certificate Owners in accordance with Section 5.06;
and provided, further, that during any period that reports are required to be
filed with the Commission with respect to the Trust pursuant to Section 15(d) of
the Exchange Act, each recipient of the Certificate Administrator Report shall
be deemed to have agreed to keep confidential the information therein until such
Certificate Administrator Report is filed with the Commission.
On each Distribution Date, the Certificate Administrator shall provide
or make available electronically (or, upon request by a Privileged Person who is
a Certificateholder or Certificate Owner or by any Privileged Person who cannot
receive a copy electronically, by first class mail) to each Privileged Person
each file and report comprising the CMSA Investor Reporting Package (other than
the CMSA Special Servicer Loan File), to the extent received by the Certificate
Administrator since the prior Distribution Date (or, in the case of the initial
Distribution Date, since the Closing Date); provided that during any period that
reports are required to be filed with the Commission with respect to the Trust
pursuant to Section 15(d) of the Exchange Act, each recipient of such files and
reports shall be deemed to have agreed to keep confidential the information in
any such file or report until such particular file or report is filed with the
Commission. Such files and reports shall be so provided or made available such
that: (i) in the case of the CMSA Loan Setup File, the CMSA Loan Periodic Update
File, the CMSA Financial File, the CMSA Property File, the CMSA Loan Level
Reserve/LOC Report and the CMSA Reconciliation of Funds Report, such file or
report presents information for all of the Pooled Mortgage Loans and/or
Mortgaged Properties (as applicable) without segregation according to the
identities of the Master Servicers; and (ii) in the case of the CMSA Delinquent
Loan Status Report, the CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, the CMSA Historical Liquidation Report, the CMSA REO Status Report,
the CMSA Servicer Watch List, the CMSA Comparative Financial Status Report, the
CMSA Operating Statement Analysis Report, the CMSA NOI Adjustment Worksheet, the
CMSA Special Servicer Loan File and the Realized Loss Report, such report
presents information separately tabbed for the Pooled Mortgage Loans and/or
Mortgaged Properties or REO Properties (as applicable) for which each respective
Master Servicer is the applicable Master Servicer.
The Certificate Administrator shall have no obligation to provide the
information or reports described in this Section 4.02(a) until it has received
the requisite information or reports from the Master Servicers provided for
herein, and the Certificate Administrator shall not be in default hereunder due
to a delay in providing such information and reports caused by the failure of a
Master Servicer or the Special Servicer to timely deliver any information or
reports hereunder. None of the Master Servicers, the Special Servicer or the
Certificate Administrator shall be responsible for the accuracy or completeness
of any information supplied to it by a Borrower, each other or a third party,
and accepted by it in good faith, that is included in any reports, statements,
materials or information prepared or provided by either Master
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Servicer, the Special Servicer or the Certificate Administrator, as applicable.
None of the Certificate Administrator, the Master Servicers or the Special
Servicer shall have any obligation to verify the accuracy or completeness of any
information provided by a Borrower, a third party or each other.
The Certificate Administrator shall make available to the general
public each month the related Certificate Administrator Report via its internet
website initially located at "xxx.xxxxxxx.xxx/xxxx". In addition, the
Certificate Administrator shall make available each month, via its internet
website on a restricted basis solely to Privileged Persons, (i) the Unrestricted
Servicer Reports, (ii) the CMSA Bond Level File and the CMSA Collateral Summary
File, and (iii) as a convenience to interested persons (and not in furtherance
of the distribution thereof under the securities laws), the Prospectus, this
Agreement and each of the Pooled Mortgage Loan Purchase Agreements (including,
in each case, all schedules and exhibits thereto). Upon notification by the
Depositor that the Underwriters have sold the Non-Registered Certificates to
unaffiliated third parties, the Certificate Administrator shall remove the
restriction provided for in the preceding sentence and shall make such reports
and documents available to any interested person. The Certificate Administrator
shall also make available each month, on a restricted basis to any Privileged
Person via its internet website, (i) the Restricted Servicer Reports, and (ii)
any other report at the direction of the Depositor. During any period that
reports are required to be filed with the Commission with respect to the Trust
pursuant to Section 15(d) of the Exchange Act, each recipient of information
regarding the Trust on the Certificate Administrator's internet website will be
deemed to have agreed to keep confidential such information until such reports
are filed with the Commission, and to the extent such information is presented
on the Certificate Administrator's internet website, such website will bear a
legend to the following effect: "No recipient shall use or disclose the
information contained in this statement/report/file in any manner which could
result in a violation of any provision of the Securities Act of 1933 or the
Securities Exchange Act of 1934 or would require registration of any
Non-Registered Certificates pursuant to Section 5 of the Securities Act of
1933."
The Certificate Administrator makes no representations or warranties as
to the accuracy or completeness of any report, document or other information
made available on its internet website and assumes no responsibility therefor.
In addition, the Certificate Administrator may disclaim responsibility for any
information distributed by the Certificate Administrator for which it is not the
original source.
In connection with providing access to the Certificate Administrator's
internet website, the Certificate Administrator may require registration and the
acceptance of a disclaimer (provided that such website provides thereon
electronic means of fulfilling such registration and acceptance for purposes of
obtaining access to Unrestricted Servicer Reports). The Certificate
Administrator shall not be liable for the dissemination of information in
accordance herewith. Questions regarding the Certificate Administrator's
internet website can be directed to the Certificate Administrator's CMBS
customer service desk at (000) 000-0000 or such other number as the Certificate
Administrator may hereinafter specify.
The Certificate Administrator shall be entitled to rely on but shall
not be responsible for the content or accuracy of any information provided by
third parties for purposes of preparing the Certificate Administrator Report and
may affix thereto any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(b) Certain Tax-Related Reporting to Certificateholders by the
Certificate Administrator. Within a reasonable period of time after the end of
each calendar year, the Certificate Administrator shall prepare, or cause to be
prepared, and mail to each Person who at any time during the calendar year was a
Certificateholder (i) a statement containing the aggregate information set forth
on page 2 of Exhibit D hereto for such calendar year or applicable portion
thereof during which such person was a Certificateholder and (ii) such other
customary information as the Certificate Administrator deems necessary or
desirable for Certificateholders to prepare their federal, state and local
income tax returns, including the amount of original issue discount accrued on
the Certificates, if applicable. The obligations of the Certificate
Administrator in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Certificate Administrator pursuant to any requirements of the
Code. As soon as practicable following the request of any Certificateholder in
writing, the Certificate Administrator shall furnish to such Certificateholder
such information regarding the Pooled Mortgage Loans and the Mortgaged
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Properties as such Certificateholder may reasonably request and, as has been
furnished to, or may otherwise be in the possession of, the Certificate
Administrator. Each of the Master Servicers and the Special Servicer shall
promptly provide to the Depositor and the Certificate Administrator such
information regarding, in the case of a Master Servicer, the Mortgage Loans and
the Mortgaged Properties for which it is the applicable Master Servicer and, in
the case of the Special Servicer, the Specially Serviced Mortgage Loans and the
Administered REO Properties, as the case may be, in any event as such party may
reasonably request and that has been furnished to, or may otherwise be in the
possession of, such Master Servicer or the Special Servicer, as the case may be.
(c) CMSA Loan Periodic Update Files. Not later than 9:00 a.m. (New York
City time) on the third Business Day following each Determination Date (which is
also the second Business Day preceding the related Distribution Date), the
Servicer Report Administrator shall deliver to the Certificate Administrator the
CMSA Loan Periodic Update File, combining information with respect to the Pooled
Mortgage Loans as to which it is the applicable Master Servicer and information
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Pooled Mortgage Loans as to which such other Master Servicer is
the applicable Master Servicer (as described in the immediately succeeding
sentence), without segregation according to the identities of the Master
Servicers, and reflecting information as of the close of business on such
Determination Date (or, in the case of the Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the Non-Trust Servicing Agreement). Not later than 9:00 a.m. (New
York City time) on the second Business Day following each Determination Date,
the Master Servicer that is not the Servicer Report Administrator shall deliver
to the Servicer Report Administrator the CMSA Loan Periodic Update File with
respect to the Pooled Mortgage Loans as to which it is the applicable Master
Servicer, reflecting information as of the close of business on such
Determination Date (or, in the case of the Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the Non-Trust Servicing Agreement). The CMSA Loan Periodic Update
File delivered by each Master Servicer as described above shall be in an
electronic format that is mutually acceptable to the two Master Servicers and
the Certificate Administrator. Each CMSA Loan Periodic Update File and any
written information supplemental thereto shall include such information with
respect to the subject Pooled Mortgage Loans that is reasonably required by the
Certificate Administrator for purposes of making the calculations and preparing
the reports for which the Certificate Administrator is responsible pursuant to
Section 4.01, this Section 4.02, Section 4.04 or any other section of this
Agreement, as set forth in reasonable written specifications or guidelines
issued by the Certificate Administrator from time to time. Such information may
be delivered to the Certificate Administrator by the Servicer Report
Administrator and, if applicable, to the Servicer Report Administrator by the
other Master Servicer by electronic mail or in such electronic or other form as
may be reasonably acceptable to the two Master Servicers and the Certificate
Administrator.
Notwithstanding the foregoing, the parties agree that the CMSA Loan
Periodic Update File required to be delivered by each Master Servicer in January
2005 will be based solely upon information generated from actual collections
received by such Master Servicer (or, in the case of the Non-Trust-Serviced
Pooled Mortgage Loan, by the Non-Trust Master Servicer) and from information
that the respective Pooled Mortgage Loan Sellers deliver or cause to be
delivered to such Master Servicer (including but not limited to information
prepared by third-party servicers of the subject Pooled Mortgage Loans with
respect to the period prior to the Closing Date). The Special Servicer shall
from time to time (and, in any event, upon request) provide each Master Servicer
with such information in its possession regarding the Specially Serviced
Mortgage Loans and Administered REO Properties as may be necessary for such
Master Servicer to prepare each report and any supplemental information to be
provided by such Master Servicer to the Certificate Administrator.
(d) CMSA Operating Statement Analysis Report, CMSA Financial Files,
CMSA Comparative Financial Status Reports and CMSA NOI Adjustment Worksheets.
The applicable Master Servicer shall prepare and maintain a CMSA Operating
Statement Analysis Report and a CMSA NOI Adjustment Worksheet with respect to
each Mortgaged Property that secures a Serviced Pooled Mortgage Loan that is not
a Specially Serviced Pooled Mortgage Loan and the Special Servicer shall prepare
and maintain a CMSA Operating Statement Analysis Report and a CMSA NOI
Adjustment Worksheet with respect to each Specially Serviced Pooled Mortgage
Loan and Administered REO Property, in each case in accordance with the
provisions described below. As to quarterly (that is, not annual) periods,
within 105 calendar days after the end of each of the first three calendar
quarters (in each year) for the trailing or quarterly
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information received, commencing with respect to the quarter ending on March 31,
2005, the applicable Master Servicer (in the case of Mortgaged Properties that
secure Serviced Pooled Mortgage Loans that are not Specially Serviced Mortgage
Loans) or the Special Servicer (in the case of Mortgaged Properties securing
Specially Serviced Mortgaged Loans and Administered REO Properties) shall, based
upon the operating statements or rent rolls received (if and to the extent
received) and covering such calendar quarter, prepare (or, if previously
prepared, update) the CMSA Operating Statement Analysis Report and the CMSA
Comparative Financial Status Report for each related Mortgaged Property and/or
REO Property, using the non-normalized quarterly and year-end operating
statements and rent rolls received from the related Borrower. As to annual (that
is, not quarterly) periods, not later than the second Business Day following the
Determination Date occurring in July of each year (beginning in 2005 for year
end 2004), the applicable Master Servicer (in the case of Mortgaged Properties
securing Serviced Pooled Mortgage Loans that are not Specially Serviced Mortgage
Loans) or the Special Servicer (in the case of Mortgaged Properties securing
Specially Serviced Mortgage Loans and Administered REO Properties) shall, based
upon the most recently available normalized year-end financial statements and
most recently available rent rolls received (if and to the extent received) not
less than thirty (30) days prior to such second Business Day, prepare (or, if
previously prepared, update) the CMSA Operating Statement Analysis Report, the
CMSA Comparative Financial Status Report and a CMSA NOI Adjustment Worksheet for
each related Mortgaged Property and/or REO Property.
The Master Servicers and the Special Servicer shall each remit
electronically an image (labeled according to the ARCap Naming Convention for
Electronic File Delivery) of each CMSA Operating Statement Analysis Report
and/or each CMSA NOI Adjustment Worksheet prepared or updated by it (promptly
following initial preparation and each update thereof), together with the
underlying operating statements and rent rolls (in an electronic imaged format
labeled according to the ARCap Naming Convention for Electronic File Delivery)
to the Controlling Class Representative, the Certificate Administrator (upon
request) and, in the case of such a report prepared or updated by a Master
Servicer, the Special Servicer. The Certificate Administrator shall, upon
request from the applicable Master Servicer or the Special Servicer and, to the
extent such items have been delivered to the Certificate Administrator by a
Master Servicer or the Special Servicer, deliver to any Certificateholder or, if
the Certificate Administrator has in accordance with Section 5.06(b) confirmed
the Ownership Interest in the Certificates held thereby, any Certificate Owner,
a copy of the CMSA Operating Statement Analysis, the CMSA Financial File and the
CMSA NOI Adjustment Worksheet (or update thereof) for any Mortgaged Property or
REO Property and, if requested, the related operating statement or rent rolls.
The applicable Master Servicer for the Non-Trust-Serviced Pooled
Mortgage Loan shall deliver information comparable to the above-described
information to the same Persons as described above and according to the same
time frames as described above, with reasonable promptness following such Master
Servicer's receipt of such information from the Non-Trust Master Servicer under
the applicable Non-Trust Servicing Agreement.
If, with respect to any Performing Serviced Mortgage Loan, the Special
Servicer has any questions for the related Borrower based upon the information
delivered to the Special Servicer pursuant to Section 3.12(a) or this Section
4.02(d), the applicable Master Servicer shall, in this regard and without
otherwise changing or modifying its duties hereunder, reasonably cooperate with
the Special Servicer in assisting the Special Servicer in the Special Servicer's
efforts to contact and solicit information from such Borrower.
(e) Reporting by the Special Servicer. Not later than 2:00 p.m. (New
York City time) on the first Business Day following each Determination Date, the
Special Servicer shall prepare and deliver or cause to be delivered to both of
the Master Servicers and the Controlling Class Representative the CMSA Special
Servicer Loan File with respect to the Specially Serviced Mortgage Loans and
Administered REO Properties, providing the required information as of such
Determination Date. In addition, the Special Servicer shall from time to time
provide the Master Servicers with such information in the Special Servicer's
possession regarding any Specially Serviced Mortgage Loan or Administered REO
Property as may be requested by either Master Servicer and is reasonably
necessary for such Master Servicer to prepare each report and any supplemental
information required to be provided by such Master Servicer to the Certificate
Administrator or (in the case of the Master Servicer that is not the Servicer
Report Administrator) to the Servicer Report Administrator.
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(f) Other Reporting by the Master Servicers. Not later than 12:00 noon
(New York City time) on the Business Day immediately preceding each Distribution
Date, the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Certificate Administrator
a CMSA Financial File, a CMSA Property File and a CMSA Comparative Financial
Status Report, combining information for the Pooled Mortgage Loans and REO
Properties for which it is the applicable Master Servicer and the information
delivered to the Servicer Report Administrator by the other Master Servicer with
respect to the Pooled Mortgage Loans and REO Properties for which such other
Master Servicer is the applicable Master Servicer, without segregation according
to the identities of the Master Servicers, and in each case providing the most
recent information with respect to the subject Pooled Mortgage Loans and REO
Properties as of the related Determination Date (or, in the case of the
Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as of which such
information is provided pursuant to the terms of the related Mortgage Loan Group
Intercreditor Agreement and the Non-Trust Servicing Agreement) and, in each
case, if applicable, identifying each subject Pooled Mortgage Loan by loan
number and property name. Not later than 9:00 a.m. (New York City time) on the
third Business Day following each Determination Date, the Master Servicer that
is not the Servicer Report Administrator shall prepare (if and to the extent
necessary) and deliver or cause to be delivered to the Servicer Report
Administrator a CMSA Financial File, a CMSA Property File and a CMSA Comparative
Financial Statement Report, combining information for the Pooled Mortgage Loans
and REO Properties for which such Master Servicer is the applicable Master
Servicer and in each case providing the most recent information with respect to
the subject Pooled Mortgage Loans and REO Properties as of the related
Determination Date (or, in the case of the Non-Trust-Serviced Pooled Mortgage
Loan, as of such other date as of which such information is provided pursuant to
the terms of the Non-Trust Servicing Agreement) and, in each case, if
applicable, identifying each subject Pooled Mortgage Loan by loan number and
property name. Each CMSA Financial File, CMSA Property File and CMSA Comparative
Financial Statement Report delivered by a Master Servicer as described above
shall be in a computer-readable medium downloadable by the Certificate
Administrator and (if applicable) the Servicer Report Administrator (or, at the
Certificate Administrator's or (if applicable) the Servicer Report
Administrator's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis). Notwithstanding the foregoing
provisions of this subsection (f), neither Master Servicer shall be required to
prepare and/or deliver any of such files or reports with respect to the
Determination Date in January 2005.
Not later than 12:00 noon (New York City time) on the Business Day
immediately preceding each Distribution Date, the Servicer Report Administrator
shall deliver or cause to be delivered, with respect to those Pooled Mortgage
Loans and REO Properties as to which it is the applicable Master Servicer, and
shall prepare (if any to the extent necessary) and deliver or cause to be
delivered to the Certificate Administrator, in a computer-readable medium
downloadable by the Certificate Administrator (or, at the Certificate
Administrator's written request, in a form reasonably acceptable to the
recipient, including on a loan-by-loan basis), a CMSA Delinquent Loan Status
Report, a CMSA Historical Loan Modification and Corrected Mortgage Loan Report,
a CMSA Historical Liquidation Report, a CMSA REO Status Report, a CMSA Operating
Statement Analysis Report, a CMSA Comparative Financial Status Report, a CMSA
Servicer Watch List, a CMSA NOI Adjustment Worksheet a CMSA Special Servicer
Loan File and a Realized Loss Report, in each case combining information for the
Pooled Mortgage Loans and REO Properties for which it is the applicable Master
Servicer and the information delivered to the Servicer Report Administrator by
the other Master Servicer with respect to the Pooled Mortgage Loans and REO
Properties for which such other Master Servicer is the applicable Master
Servicer but segregated according to the identities of the Master Servicers, in
each case providing the most recent information with respect to the subject
Pooled Mortgage Loans and REO Properties as of the related Determination Date
(or, in the case of the Non-Trust-Serviced Pooled Mortgage Loan, as of such
other date as of which such information is provided pursuant to the terms of the
Non-Trust Servicing Agreement) and, in each case, if applicable, identifying
each subject Pooled Mortgage Loan by loan number and property name. On the third
Business Day following each Determination Date (which date is the Business Day
immediately preceding the related Distribution Date), the Master Servicer that
is not the Servicer Report Administrator, shall prepare (if any to the extent
necessary) and deliver or cause to be delivered to the Servicer Report
Administrator, in a computer-readable medium downloadable by the Servicer Report
Administrator (or, at the Servicer Report Administrator's written request, in a
form reasonably acceptable to the recipient, including on a loan-by-loan basis),
a CMSA Delinquent Loan Status Report, a CMSA Historical Loan Modification and
Corrected Mortgage Loan Report, a CMSA Historical Liquidation Report, a CMSA REO
Status Report,
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a CMSA Operating Statement Analysis Report, a CMSA Comparative Financial Status
Report, a CMSA Servicer Watch List, a CMSA NOI Adjustment Worksheet a CMSA
Special Servicer Loan File and a Realized Loss Report, in each case combining
information for the Pooled Mortgage Loans and REO Properties for which it is the
applicable Master Servicer, in each case providing the most recent information
with respect to the subject Pooled Mortgage Loans and REO Properties as of the
related Determination Date (or, in the case of the Non-Trust-Serviced Pooled
Mortgage Loan, as of such other date as of which such information is provided
pursuant to the terms of the Non-Trust Servicing Agreement) and, in each case,
if applicable, identifying each subject Pooled Mortgage Loan by loan number and
property name. Notwithstanding the foregoing, neither Master Servicer shall be
required to prepare and deliver any of such files or reports with respect to the
initial Determination Date following the Closing Date.
Not later than the first Business Day following each Distribution Date
(which day is the second Business Day following the related Master Servicer
Remittance Date), the Servicer Report Administrator shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Certificate
Administrator and the Controlling Class Representative an ARCap P&I Advance as
of Remittance Date Report and an ARCap Interest on Advance Reconciliation
Report, each combining information for the Pooled Mortgage Loans for which it is
the applicable Master Servicer and the information delivered to the Servicer
Report Administrator by the other Master Servicer with respect to the Pooled
Mortgage Loans for which such other Master Servicer is the applicable Master
Servicer, without segregation according to the identities of the Master
Servicers, and in each case providing the most recent information with respect
to the subject Pooled Mortgage Loans as of the Master Servicer Remittance Date
related to such Distribution Date (or, in the case of the Non-Trust-Serviced
Pooled Mortgage Loan, as of such other date as of which such information is
provided pursuant to the terms of the Non-Trust Servicing Agreement). Not later
than each Distribution Date (which day is the first Business Day following the
related Master Servicer Remittance Date), the Master Servicer that is not the
Servicer Report Administrator shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Servicer Report Administrator an ARCap
P&I Advance as of Remittance Date Report and an ARCap Interest on Advance
Reconciliation Report, in each case providing the most recent information with
respect to the subject Pooled Mortgage Loans as of the Master Servicer
Remittance Date related to such Distribution Date (or, in the case of the
Non-Trust-Serviced Pooled Mortgage Loan, as of such other date as of which such
information is provided pursuant to the terms of the Non-Trust Servicing
Agreement).
Within two Business Days following the end of each calendar month, the
Servicer Report Administrator shall prepare (if and to the extent necessary) and
deliver or cause to be delivered to the Certificate Administrator and the
Controlling Class Representative an ARCap Mortgage Loans Delinquent Report,
combining information for the Pooled Mortgage Loans for which it is the
applicable Master Servicer and the information delivered to the Servicer Report
Administrator by the other Master Servicer with respect to the Pooled Mortgage
Loans for which such other Master Servicer is the applicable Master Servicer,
without segregation according to the identities of the Master Servicers, and in
each case providing the most recent information with respect to the subject
Pooled Mortgage Loans (which shall be the Pooled Mortgage Loans for which a P&I
Advance was made on the preceding P&I Advance Date) as of the end of such
calendar month. Within one Business Day following the end of each calendar
month, the Master Servicer that is not the Servicer Report Administrator shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Servicer Report Administrator an ARCap Mortgage Loans Delinquent Report
providing the most recent information with respect to the subject Pooled
Mortgage Loans for which such Master Servicer is the applicable Master Servicer
(which shall be the Pooled Mortgage Loans for which such Master Servicer is the
applicable Master Servicer and a P&I Advance was made on the preceding Master
Servicer Remittance Date) as of the end of such calendar month.
Each Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (and any ARCap
P&I Advance as of Remittance Date Report, any ARCap Interest on Advances
Reconciliation Report and any ARCap Mortgage Loans Delinquent Report) prepared
by it with respect to the Pooled Mortgage Loans and REO Properties as to which
it is the applicable Master Servicer, available each month on such Master
Servicer's internet website only with the use of a password, in which case such
Master Servicer shall provide such password to (i) the other parties to this
Agreement, who by their acceptance of such password shall be deemed to have
agreed not to disclose such password to any other Person, (ii) the Rating
Agencies and the Controlling Class Representative, and (iii) each
Certificateholder and Certificate Owner who requests such password, provided
that any such Certificateholder or Certificate Owner, as the case may be, has
delivered a certification substantially in the form of
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Exhibit K-1 to the Certificate Administrator (with a copy to such Master
Servicer). In connection with providing such access to its internet website, a
Master Servicer may require registration and the acceptance of a reasonable
disclaimer and otherwise (subject to the preceding sentence) adopt reasonable
rules and procedures, which may include, to the extent a Master Servicer deems
necessary or appropriate, conditioning access on execution of a reasonable
agreement governing the availability, use and disclosure of such information,
and which may provide indemnification to such Master Servicer for any liability
or damage that may arise therefrom. For the avoidance of doubt, the foregoing
sentence shall not be construed to limit any right to receive information
already provided for in this Agreement.
If either Master Servicer determines, in its reasonable judgment, that
information regarding the Pooled Mortgage Loans and REO Properties for which it
is the applicable Master Servicer (in addition to the information otherwise
required to be contained in the CMSA Investor Reporting Package) should be
disclosed to Certificateholders and Certificate Owners, then (i) if the nature
of the information is comparable to the information contemplated by the forms of
Restricted Servicer Reports or the applicable Master Servicer otherwise
determines that public availability of such information is not appropriate under
the circumstances, (A) the applicable Master Servicer shall be entitled to so
notify the Certificate Administrator, set forth such information in an
additional report (in a format reasonably acceptable to the Certificate
Administrator), deliver such report to the Certificate Administrator
simultaneously with the delivery of its reports described in the first paragraph
of this Section 4.02(f) and provide to the Certificate Administrator a statement
(for inclusion in the Certificate Administrator Report for the related
Distribution Date or for direct posting to the Certificate Administrator's
website, as the case may be) generally describing the type of information
provided and to the effect that such information will be made available by the
same means and at the same time that the Restricted Servicer Reports are made
available with respect to such Distribution Date; and (B) if the information
described in the immediately preceding clause (A) is timely received, the
Certificate Administrator shall include such statement in the Certificate
Administrator Report for such Distribution Date (or directly post it to the
Certificate Administrator's internet website) and make such additional report
available by the same means and at the same time that the Restricted Servicer
Reports are made available with respect to such Distribution Date; and (ii) if
the nature of the information is not as described by clause (i) above, the
applicable Master Servicer shall be entitled to so notify the Certificate
Administrator, set forth such information in an additional report (in a format
reasonably acceptable to the Certificate Administrator) and deliver such report
to the Certificate Administrator simultaneously with the delivery of its reports
described in the first paragraph of this Section 4.02(f); and (B) if the
information described in the immediately preceding clause (A) is timely
received, the Certificate Administrator shall include such additional report in
or as an attachment to the Certificate Administrator Report for such
Distribution Date (or directly post it to the Certificate Administrator's
internet website). If the applicable Master Servicer or the Special Servicer for
a Serviced Mortgage Loan determines, in its reasonable judgment, that
information regarding such Serviced Mortgage Loan, any related Mortgaged
Property or any related REO Property for which it is the applicable Master
Servicer should be disclosed to the related Non-Pooled Noteholders (if any),
then such Master Servicer may forward or make such information available to such
Non-Pooled Noteholders.
(g) Certain General Provisions Regarding Reporting. The Special
Servicer shall deliver to the applicable Master Servicer(s) the reports and
files required to be delivered pursuant to Section 4.02(d) and Section 4.02(e),
the Master Servicer that is not the Servicer Report Administrator shall deliver
to the Servicer Report Administrator the reports and files required to be
delivered pursuant to Section 4.02(c), Section 4.02(d) and Section 4.02(f) and
the applicable Master Servicer(s) shall deliver to the Certificate Administrator
the reports set forth in Section 4.02(c) and Section 4.02(f), in an electronic
format reasonably acceptable to the Special Servicer, the Master Servicers and
the Certificate Administrator. Each Master Servicer may, absent manifest error,
conclusively rely on the file to be provided by the Special Servicer pursuant to
Section 4.02(e). The Servicer Report Administrator may, absent manifest error,
conclusively rely on the reports to be provided by the other Master Servicer
pursuant to Section 4.02(c) and Section 4.20(f). The Certificate Administrator
may, absent manifest error, conclusively rely on the reports to be provided by a
Master Servicer pursuant to Section 4.02(c) and Section 4.20(f). To the extent
that any report to be prepared and provided to the Certificate Administrator,
the Controlling Class Representative and/or (if applicable) the Servicer Report
Administrator by a Master Servicer pursuant to Section 4.02(c) and Section
4.20(f) is dependent on information from the Special Servicer, the other Master
Servicer or a party under the Non-Trust Servicing Agreement, and the Special
Servicer, such other Master Servicer or such party under the Non-Trust Servicing
Agreement (as the case may be) has not timely
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provided such information to such Master Servicer, such Master Servicer shall on
a timely basis provide to the Certificate Administrator, the Controlling Class
Representative and/or (if applicable) the Servicer Report Administrator, as
applicable, as complete a report as the information provided by the Special
Servicer, such other Master Servicer or such party under the Non-Trust Servicing
Agreement (as the case may be) permits and shall promptly update and provide to
the Certificate Administrator, the Controlling Class Representative and/or (if
applicable) the Servicer Report Administrator, as applicable, a complete report
when the Special Servicer, such other Master Servicer or such party under the
Non-Trust Servicing Agreement (as the case may be) provides such Master Servicer
with the requisite missing information; and such Master Servicer shall not be in
breach hereunder for so providing an incomplete report under Section 4.02(c) or
Section 4.02(f) under the foregoing circumstances. Furthermore, if any report to
be provided to the Certificate Administrator, the Controlling Class
Representative and/or (if applicable) the Servicer Report Administrator by a
Master Servicer pursuant to Section 4.02(c) or Section 4.02(f) was to be
prepared by the Special Servicer or the other Master Servicer and delivered to
such Master Servicer, such Master Servicer shall not be in breach by reason of
any delay in its delivery of such report to the Certificate Administrator, the
Controlling Class Representative and/or (if applicable) the Servicer Report
Administrator, as applicable, by reason of a delay on the part of the Special
Servicer or such other Master Servicer (as the case may be) to deliver such
report to such Master Servicer; and such Master Servicer shall deliver as
promptly as reasonably practicable to the Certificate Administrator, the
Controlling Class Representative and/or the Servicer Report Administrator, as
applicable, any such report that it receives from the Special Servicer or such
other Master Servicer (as the case may be) after the requisite delivery date.
(h) Order of Presentations. Each report hereunder that comprises part
of the CMSA Investor Reporting Package shall, to the extent such report presents
information regarding the individual Mortgage Loans and Mortgaged Properties,
present such information in ascending order of the loan identification number
set forth in the Prospectus.
(i) Certain Means of Delivery. Except to the extent a form of delivery
is specified in this Agreement, if a Master Servicer or the Special Servicer is
required to deliver any statement, report or information under any provision of
this Agreement, such Master Servicer or the Special Servicer, as the case may
be, may satisfy such obligation by (x) physically delivering a paper copy of
such statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on a Master Servicer's internet website or the
Certificate Administrator's internet website and notifying the Person(s)
entitled to such statement, report or information of such availability.
Notwithstanding the foregoing, the Certificate Administrator, the Trustee and
the Special Servicer may each request delivery in paper format of any statement,
report or information required to be delivered to the Certificate Administrator,
the Trustee or the Special Servicer, as the case may be, and clause (z) shall
not apply to the delivery of any information required to be delivered to the
Certificate Administrator, the Trustee or the Special Servicer, as the case may
be, unless the Certificate Administrator, the Trustee or the Special Servicer,
as the case may be, consents to such delivery.
(j) Notwithstanding any other provision of this Agreement to the
contrary, the parties hereto shall cause to be delivered to the Controlling
Class Representative the reports and information set forth on Exhibit E-6 hereto
in the manner, formats and at the times set forth therein. The intention of this
Section 4.02 is (among other things) to implement the reporting contemplated by
such Exhibit E-6. If the Controlling Class Representative and the Special
Servicer are Affiliates of one another, a report delivered to one of them by a
Master Servicer need not also be delivered to the other of them.
(k) During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, access to information regarding the Trust on a Master Servicer's Internet
Website will be conditioned to the party attempting to gain such access
electronically agreeing to keep confidential any such information that has not
been filed with the Commission.
(l) No provisions of this Agreement shall be deemed to require a Master
Servicer or the Special Servicer to confirm or make any representation regarding
the accuracy of (or to be liable or responsible for) any other Person's
information or report.
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(m) Each of the Master Servicers shall produce the reports required of
it under this Agreement (including those set forth on Exhibit E-6) but shall not
be required to (but may upon request) produce any ad hoc non-standard written
reports. If a Master Servicer elects to provide any non-standard reports, it may
require the Person requesting such report to pay a reasonable fee to cover the
costs of the preparation thereof.
(n) Notwithstanding anything in this Section 4.02 to the contrary, in
preparing and disseminating any of the statements, reports and other information
required under this Section 4.02, insofar as such statements, reports and other
information relate to the Non-Trust-Serviced Pooled Mortgage Loan or any related
REO Property, the applicable Master Servicer shall be entitled to rely upon the
information received by it under the related Mortgage Loan Group Intercreditor
Agreement and/or the Non-Trust Servicing Agreement; provided that it does not
have actual knowledge that any such information received by it is erroneous. In
addition, absent knowledge to the contrary, the applicable Master Servicer, the
Servicer Report Administrator and the Certificate Administrator shall assume
that, on each Distribution Date, for so long as the Non-Trust-Serviced Pooled
Mortgage Loan or any successor REO Pooled Mortgage Loan with respect thereto is
part of the Mortgage Pool, an amount at least equal to the Monthly Payment (or,
following the related maturity date or any related REO Acquisition, the Assumed
Monthly Payment) for the preceding Due Date will (in the form of a P&I Advance
or otherwise) be passed through to the Certificateholders, with the interest
portion thereof adjusted to the related Net Mortgage Rate.
(o) Each of the parties hereto shall cooperate with the other to make
information available that may be necessary to satisfy the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act.
(p) With respect to each Serviced Mortgage Loan Group, the applicable
Master Servicer shall deliver or cause to be delivered to each Serviced
Non-Pooled Mortgage Loan Noteholder (or its designee), the Certificate
Administrator (upon request), the Special Servicer and the Controlling Class
Representative the following materials, in writing or by electronic means
reasonably acceptable to related Serviced Non-Pooled Mortgage Loan Noteholder
(or its designee) and such Master Servicer (and such reports may include any
reasonable disclaimers with respect to information provided by third parties or
with respect to assumptions required to be made in the preparation of such
reports as such Master Servicer deems appropriate) not later than two Business
Days after the end of each Collection Period:
(i) the amount of the distributions made on the respective
Mortgage Loan(s) in such Serviced Mortgage Loan Group for such period
allocable to interest (separately identifying Default Interest) and the
amount thereof allocable to principal;
(ii) if the amount of the distributions to any related Serviced
Non-Pooled Mortgage Loan Noteholder was less than the full amount that would
have been distributable to such Serviced Non-Pooled Mortgage Loan Noteholder
if there had been sufficient funds, the amount of the shortfall, stating
separately the amounts allocable to interest and principal;
(iii) the outstanding principal balance of each Mortgage Loan in
such Serviced Mortgage Loan Group immediately following payment for such
period;
(iv) the aggregate amount of unscheduled payments of principal
allocable to each Mortgage Loan in such Serviced Mortgage Loan Group (and
the source thereof) made during the related period;
(v) identification of any Event of Default under this Agreement of
which such Master Servicer has notice or actual knowledge, as of the date of
such report;
(vi) the aggregate outstanding Servicing Advances with respect to
such Serviced Mortgage Loan Group and interest thereon as of the end of, and
all interest paid on Servicing Advances with respect to such Serviced
Mortgage Loan Group during, the prior calendar month;
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(vii) the amount of the servicing compensation paid to the
applicable Master Servicer and the Special Servicer with respect to such
Serviced Mortgage Loan Group, including the Master Servicing Fee, the
Special Servicing Fee, any Work-out Fee, any Liquidation Fee and any charges
to the related Borrower retained by the applicable Master Servicer or the
Special Servicer as allocated among the Mortgage Loans in such Serviced
Mortgage Loan Group;
(viii) information relating to the status of such Serviced
Mortgage Loan Group if the Mortgage Loans in such group constitute Specially
Serviced Mortgage Loans including, if applicable, the status of the
bankruptcy of the related Borrower (along with copies of any related
bankruptcy filings);
(ix) the amount of any shortfalls in distributions to the holders
of the Mortgage Loans in such Serviced Mortgage Loan Group for such period
and the amount of any outstanding amounts due on the such Mortgage Loans for
prior periods; and
(x) information contained in the CMSA Investor Reporting Package
relating solely to the Pooled Mortgage Loans within such Serviced Mortgage
Loan Group.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m. (New York City time) on each P&I Advance
Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit
from its own funds to the Certificate Administrator for deposit into the
Distribution Account an amount equal to the aggregate amount of P&I Advances, if
any, to be made by such Master Servicer in respect of the related Distribution
Date, (ii) apply amounts held in such Master Servicer's Collection Account for
future distribution to Certificateholders in subsequent months in discharge of
any such obligation to make such P&I Advances, or (iii) make such P&I Advances
in the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made by such Master Servicer; provided, that the Master
Servicer shall give preference to amounts in clause (ii) of this sentence for
purposes of making P&I Advances. Any amounts held in either Master Servicer's
Collection Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in such Master Servicer's records and replaced
by such Master Servicer by deposit in its Collection Account prior to the next
succeeding Master Servicer Remittance 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 3:30 p.m.
(New York City time) on any P&I Advance Date, either Master Servicer shall not
have made any P&I Advance required to be made by it on such date pursuant to
this Section 4.03(a) (and shall not have delivered to the Certificate
Administrator and the Trustee the Officer's Certificate and other documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted by such Master Servicer on such date,
then the Certificate Administrator shall provide notice of such failure to such
Master Servicer by facsimile transmission as soon as possible, but in any event
before 4:30 p.m. (New York City time) on such P&I Advance Date. If after such
notice the Certificate Administrator does not receive the full amount of such
P&I Advances by 9:00 a.m. (New York City time) on the related Distribution Date,
then the Certificate Administrator shall promptly notify the Trustee and the
Fiscal Agent (but in any event before 10:00 a.m. (New York City time) and the
Trustee (or the Fiscal Agent on its behalf) shall (not later than 12:00 noon,
New York City time, on the related Distribution Date) make the portion of such
P&I Advances that was required to be, but was not, made or remitted, as the case
may be, by such Master Servicer with respect to the related Distribution Date.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer (or by the Trustee or Fiscal Agent, as applicable, if such Master
Servicer fails to do so) in respect of any Distribution Date, subject to Section
4.03(c) below, shall equal the aggregate of all Monthly Payments (other than
Balloon Payments) and any Assumed Monthly Payments, in each case net of any
related Master Servicing Fees (and, in the case of the Non-Trust-Serviced Pooled
Mortgage Loan or REO Pooled Mortgage Loan that is a successor thereto), any
comparable master servicing fees under the Non-Trust Servicing Agreement), due
or deemed due, as the case may be, in respect of the Pooled Mortgage Loans as to
which such Master Servicer is the applicable Master Servicer and any successor
REO Mortgage Loans with respect thereto on their respective Due Dates occurring
in the month in which such Distribution Date occurs, in each case
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to the extent such amount was not Received by the Trust as of the close of
business on the related Determination Date; provided that, if an Appraisal
Reduction Amount exists with respect to any Required Appraisal Loan, then the
interest portion of any P&I Advance required to be made in respect of such
Required Appraisal Loan for the related Distribution Date shall be reduced (it
being herein acknowledged that there shall be no reduction in the principal
portion of such P&I Advance) to equal the product of (i) the amount of the
interest portion of such P&I Advance that would otherwise be required to be made
in respect of such Required Appraisal Loan for such Distribution Date without
regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which shall equal the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, and the denominator of which shall equal
the Stated Principal Balance of such Required Appraisal Loan immediately prior
to such Distribution Date.
(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 a Master Servicer
(or, if applicable, the Trustee or the Fiscal Agent) that a prior P&I Advance
(or Unliquidated Advance in respect thereof) that it has made constitutes a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable, good faith judgment. In making such recoverability determination,
such Person will be entitled to consider (among other things) only the
obligations of the Borrower under the terms of the related Pooled Mortgage Loan
as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions regarding the possibility
and effects of future adverse change with respect to such Mortgaged Properties,
to estimate and consider (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
such Person may update or change its recoverability determinations at any time
and may obtain from the Special Servicer any analysis, Appraisals or market
value estimates or other information in the possession of the Special Servicer
for such purposes. Any determination by a Master Servicer (or, if applicable,
the Trustee or the Fiscal Agent) that it has made a Nonrecoverable P&I Advance
or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the
Depositor, the Special Servicer, the Certificate Administrator, the Controlling
Class Representative and, if made by a Master Servicer, the Trustee (on or
before the related P&I Advance Date in the case of a proposed P&I Advance),
setting forth the basis for such determination, accompanied by a copy of an
Appraisal of the related Mortgaged Property or REO Property performed within the
12 months preceding such determination by a Qualified Appraiser, and further
accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that the Person making such
determination may have obtained. A copy of any such Officer's Certificate (and
accompanying information) of the Trustee or the Fiscal Agent shall also be
promptly delivered to the Certificate Administrator, the Controlling Class
Representative, the Special Servicer and the Master Servicer for the subject
Mortgage Loan. Absent bad faith, a Master Servicer's determination as to the
recoverability of any P&I Advance shall be conclusive and binding on the
Certificateholders and, in all cases, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on any nonrecoverability determination made by a
Master Servicer with respect to a particular P&I Advance. The Special Servicer
shall promptly furnish any party required to make P&I Advances hereunder with
any information in its possession regarding the Specially Serviced Pooled
Mortgage Loans and REO Properties as such party required to make P&I Advances
may reasonably request. The applicable Master Servicer shall consider
Unliquidated Advances in respect of prior P&I Advances as outstanding Advances
for purposes of recoverability determinations as if such Unliquidated Advance
were a P&I Advance.
The Special Servicer for each Pooled Mortgage Loan shall also be
entitled to make a determination (subject to the same standards and procedures
that apply in connection with a determination by the applicable Master Servicer)
to the effect that a prior P&I Advance (or Unliquidated Advance in respect
thereof) previously made hereunder by the applicable Master Servicer (or, if
applicable, the Trustee or the Fiscal Agent) constitutes a Nonrecoverable P&I
Advance or that any proposed P&I Advance by the applicable Master Servicer (or,
if applicable, the Trustee or the Fiscal Agent), if made, would constitute a
Nonrecoverable P&I Advance, in which case such P&I Advance shall constitute a
Nonrecoverable P&I Advance for all purposes of this Agreement. A copy of any
Officer's Certificate (and accompanying
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information) of the Special Servicer in support of its determination shall be
promptly delivered to the Master Servicer for the subject Mortgage Loan. The
Special Servicer may update or change its recoverability determination at any
time.
In connection with each Non-Pooled Pari Passu Companion Loan (but if a
Non-Pooled Pari Passu Companion Loan is not the subject of a rated commercial
mortgage securitization as of the Closing Date, then this provision shall apply
only from and after the date on which the applicable Master Servicer has
received notice to the effect that such Non-Pooled Pari Passu Companion Loan has
been securitized as part of a commercial mortgage securitization similar to the
securitization effected by this Agreement and in which securities are issued
that are rated by at least one national statistical rating organization): (i) if
the applicable Master Servicer receives written notice (which notice is
accompanied by the supporting evidence for such determination) that the related
master servicer or other comparable party responsible for making debt service
advances under the pooling and servicing agreement for such securitization has
determined, pursuant to such agreement, that any debt service advance made or to
be made with respect to the related Non-Pooled Pari Passu Companion Loan (or any
successor REO mortgage loan with respect thereto) would not ultimately be
recoverable out of collections on such Mortgage Loan (or such REO mortgage
loan), then such Master Servicer shall deliver an Officer's Certificate to such
effect to the Trustee, the Fiscal Agent, the Special Servicer and the Depositor
or shall forward a copy of the written notice received from such master servicer
or comparable party; (ii) if such Master Servicer thereafter receives notice
(which notice is accompanied by the supporting evidence for such determination)
that such determination has been withdrawn or rescinded by such comparable
party, or if P&I Advances related to such Non-Trust-Serviced Pooled Mortgage
Loan otherwise cease to be deemed to constitute Nonrecoverable P&I Advances by
operation of the definition of "Nonrecoverable P&I Advance" herein, then such
Master Servicer shall provide notice to such effect to the Trustee, the Fiscal
Agent, the Special Servicer and the Depositor; (iii) if such Master Servicer
determines that any P&I Advance made or to be made with respect to any Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) included
in the same Mortgage Loan Group is or, if made, would be a Nonrecoverable P&I
Advance, then the Master Servicer shall notify in writing such comparable party
of such determination (which notice shall be accompanied by the supporting
evidence for such determination as contemplated by the preceding paragraph); and
(iv) following any determination described in the preceding clause (iii), if
such Master Servicer subsequently determines (other than by operation of clause
(ii) above) that P&I Advances made or to be made with respect to such Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no
longer Nonrecoverable P&I Advances, then such Master Servicer shall notify in
writing such comparable party of such determination (which notice shall be
accompanied by the supporting evidence for such determination as contemplated by
the preceding paragraph). Each holder of each Non-Pooled Pari Passu Companion
Loan (and its related master servicer or comparable party responsible for debt
service advances) shall be a third party beneficiary of the preceding clauses
(iii) and (iv) to the extent that such clause relates to the related Non-Pooled
Pari Passu Companion Loans and the Trust or the applicable Master Servicer is a
third party beneficiary of a provision in the related Mortgage Loan Group
Intercreditor Agreement or in the applicable pooling and servicing agreement
that imposes (in connection with the related Non-Pooled Pari Passu Companion
Loan) on such comparable party duties (among others) that are substantially the
same as the duties that are imposed (in connection with the related Pooled
Mortgage Loan) on the applicable Master Servicer under the preceding clauses
(iii) and (iv) and the definition of "Nonrecoverable Advance". If the applicable
Master Servicer receives notice of a nonrecoverability determination by another
party to this Agreement as to any P&I Advance on a Pooled Mortgage Loan included
in a Mortgage Loan Group as described above, such Master Servicer shall promptly
forward such notice and the accompanying information to the applicable related
comparable party under the other pooling and servicing agreement.
(d) The Master Servicers, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, accrued on the amount of each P&I Advance made thereby (with its own
funds), to the extent that such P&I Advance (i) relates to a Monthly Payment or
Assumed Monthly Payment in respect of a Pooled Mortgage Loan that is a Past
Grace Period Loan or an REO Pooled Mortgage Loan when made, in which case such
interest shall begin to accrue from the related P&I Advance Date, or (ii)
remains outstanding when the subject Pooled Mortgage Loan becomes a Past Grace
Period Loan in respect of the subject Monthly Payment or Assumed Monthly
Payment, in which case such interest shall begin to accrue when the subject
Pooled Mortgage Loan becomes a Past Grace Period Loan in respect of the subject
Monthly Payment or Assumed Monthly Payment, in either case, for so
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long as such P&I Advance is outstanding (or, in the case of Advance Interest
payable to a Master Servicer, if earlier, until the Late Collection of the
delinquent principal and/or interest in respect of which such P&I Advance was
made has been Received by the Trust). Such interest with respect to any P&I
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.28,
out of any Default Charges subsequently collected on the particular Pooled
Mortgage Loan or REO Pooled Mortgage Loan as to which such P&I Advance relates;
and (ii) then, after such P&I Advance is reimbursed, but only if and to the
extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Pooled Mortgage Loans and REO
Properties on deposit in the applicable Master Servicer's Collection Account or,
to the extent contemplated by the second paragraph of Section 3.05(a), in the
other Master Servicer's Collection Account. The applicable Master Servicer shall
(subject to the operation of Section 3.05(a)(II)) reimburse itself, the Trustee
or the Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby
with respect to any Pooled Mortgage Loan or REO Pooled Mortgage Loan as soon as
practicable after funds available for such purpose are deposited in such Master
Servicer's Collection Account, 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 was received by or on behalf of the Trust as of
the related P&I Advance Date.
(e) With regard to such P&I Advances, the applicable Master Servicer,
the Trustee or the Fiscal Agent shall account for that part of the P&I Advances
which is attributable to Past Grace Period Loans, and that part of the P&I
Advances which is attributable to Within Grace Period Loans.
(f) Notwithstanding anything to the contrary, no P&I Advances shall be
made with respect to any Non-Pooled Mortgage Loan (whether or not it constitutes
a Serviced Non-Pooled Mortgage Loan or otherwise) or any successor REO Mortgage
Loan.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the
Certificate Administrator shall determine the amount, if any, by which (i) the
then aggregate of the Class Principal Balances of all the Classes of Principal
Balance Certificates, exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date. If such excess does exist, then, except to the extent that such excess
exists because of the reimbursement of Workout-Delayed Reimbursement Amounts
(from the principal portions of P&I Advances and/or payments or other
collections of principal on the Mortgage Pool pursuant to subsection (II)(iii)
of Section 3.05(a)) during any prior Collection Period (other than those that
were determined to constitute Nonrecoverable Advances in the immediately
preceding Collection Period), the Class Principal Balances of the Class Q, Class
P, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class
E, Class D, Class C, Class B and Class A-J Certificates shall be reduced
sequentially, in that order, in each case, until such excess or the related
Class Principal Balance is reduced to zero (whichever occurs first). If, after
the foregoing reductions, the amount described in clause (i) of the second
preceding sentence still exceeds the amount described in clause (ii) of such
sentence, then, except to the extent that such excess exists because of the
reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during any
prior Collection Period (other than those that were determined to constitute
Nonrecoverable Advances in the immediately preceding Collection Period), the
respective Class Principal Balances of all the outstanding Classes of the Class
A Senior Certificates shall be reduced on a pro rata basis in accordance with
the relative sizes of such Class Principal Balances, until any such remaining
excess is reduced to zero. All such reductions in the Class Principal Balances
of the respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC II Regular Interests on such date pursuant to
Section 4.01(i), the Certificate Administrator shall determine the amount, if
any, by which (i) the then aggregate Uncertificated Principal Balance of the
REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then, except to the extent that
such excess exists because of the
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reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during the
preceding Collection Period, the Uncertificated Principal Balances of REMIC II
Regular Interest Q, REMIC II Regular Interest P, REMIC II Regular Interest N,
REMIC II Regular Interest M, REMIC II Regular Interest L, REMIC II Regular
Interest K, REMIC II Regular Interest J, REMIC II Regular Interest H-1, REMIC II
Regular Interest H-2, REMIC II Regular Interest G, REMIC II Regular Interest
F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest E-1, REMIC II
Regular Interest E-2, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2 and REMIC II Regular
Interest A-J shall be reduced sequentially, in that order, in each case, until
such excess (other than any portion thereof that exists because of the
reimbursement of Workout-Delayed Reimbursement Amounts (from the principal
portion of P&I Advances and/or payments or other collections of principal on the
Mortgage Pool pursuant to subsection (II)(iii) of Section 3.05(a)) during the
preceding Collection Period) or the related Uncertificated Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of such sentence, then, except to
the extent that such excess exists because of the reimbursement of
Workout-Delayed Reimbursement Amounts (from the principal portion of P&I
Advances and/or payments or other collections of principal on the Mortgage Pool
pursuant to subsection (II)(iii) of Section 3.05(a)) during the preceding
Collection Period, (A) the aggregate amount of the Uncertificated Principal
Balances of the REMIC II Regular Interests (taken as a group) that are
Corresponding REMIC II Regular Interests with respect to the Class A-1
Certificates, (B) the individual amount of the Uncertificated Principal Balance
of the REMIC II Regular Interest that is the Corresponding REMIC II Regular
Interest with respect to the Class A-2 Certificates, (C) the aggregate amount of
the Uncertificated Principal Balances of the REMIC II Regular Interests (taken
as a group) that are Corresponding REMIC II Regular Interests with respect to
the Class A-3 Certificates, (D) the aggregate amount of the Uncertificated
Principal Balances of the REMIC II Regular Interests (taken as a group) that are
the Corresponding REMIC II Regular Interests with respect to the Class A-4
Certificates, (E) the aggregate amount of the Uncertificated Principal Balances
of the REMIC II Regular Interests (taken as a group) that are the Corresponding
REMIC II Regular Interests with respect to the Class A-5 Certificates, and (F)
the aggregate amount of the Uncertificated Principal Balances of the REMIC II
Regular Interests (taken as a group) that are the Corresponding REMIC II Regular
Interests with respect to the Class A-6 Certificates, shall be reduced on a pro
rata basis, as among such individual Corresponding REMIC II Regular Interest(s)
and groups of Corresponding REMIC II Regular Interests for the respective
Classes of Class A Senior Certificates, in accordance with the relative sizes of
such individual or aggregate amounts of Uncertificated Principal Balance (that
is, in each applicable case, where there are multiple REMIC II Regular Interests
that are Corresponding REMIC II Regular Interests with respect to a particular
Class of the Class A Senior Certificates, they shall be taken as a group for
purposes of this sentence), until any such remaining excess is reduced to zero.
Any reductions in the aggregate amount of the Uncertificated Principal Balances
of a group of REMIC II Regular Interests that are Corresponding REMIC II Regular
Interests with respect to a particular Class of the Class A Senior Certificates
pursuant to the preceding sentence shall be allocated, as between the respective
individual REMIC II Regular Interests that form such group, to reduce the
individual Uncertificated Principal Balances of such REMIC II Regular Interests
sequentially in ascending order of that portion of their alphanumeric
designations that follows the portion thereof that is the same as the
alphanumeric designation of such Class of Class A Senior Certificates (for
example, in the case of the group of REMIC II Regular Interests consisting of
REMIC II Regular Interest A-1-1, REMIC II Regular Interest A-1-2 and REMIC II
Regular Interest A-1-3, first, to REMIC II Regular Interest A-1-1; second, to
REMIC II Regular Interest A-1-2; and, third, to REMIC II Regular Interest
A-1-3), in each case until such Uncertificated Principal Balance is reduced to
zero. All such reductions in the Uncertificated Principal Balances of the
respective REMIC II Regular Interests shall be deemed to constitute allocations
of Realized Losses and Additional Trust Fund Expenses.
(c) On each Distribution Date, if, following the deemed distributions
to be made in respect of the REMIC I Regular Interests pursuant to Section
4.01(j), the Uncertified Principal Balance of any REMIC I Regular Interest
(after taking account of such deemed distributions) exceeds the Stated Principal
Balance of the related Pooled Mortgage Loan or REO Pooled Mortgage Loan (or, if
such REMIC I Regular Interest relates to multiple Replacement Pooled Mortgage
Loans, the aggregate Stated Principal Balance of the related Pooled Mortgage
Loans and/or REO Pooled Mortgage Loans), as the case may be, that will be
outstanding immediately following such Distribution Date, then, except
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to the extent that such excess exists (taking account of the provisions of the
next succeeding sentence) because of the reimbursement of Workout-Delayed
Reimbursement Amounts (from the principal portion of P&I Advances and/or
payments or other collections of principal on the Mortgage Pool pursuant to
subsection (II)(iii) of Section 3.05(a)) during the preceding Collection Period,
the Uncertificated Principal Balance of such REMIC I Regular Interest shall be
reduced to equal such Stated Principal Balance of such related Pooled Mortgage
Loan or REO Pooled Mortgage Loan (or, if such REMIC I Regular Interest relates
to multiple Replacement Pooled Mortgage Loans, the aggregate Stated Principal
Balance of the related Pooled Mortgage Loans and/or REO Pooled Mortgage Loans),
as the case may be, that will be outstanding immediately following such
Distribution Date. For purposes of the immediately preceding sentence, the
aggregate amount excluded from the aggregate reductions of the Uncertificated
Principal Balances of the REMIC I Regular Interests collectively shall equal the
amount excluded from the reductions of the Uncertificated Principal Balances of
the REMIC II Regular Interests pursuant to subsection (b) and such aggregate
exclusion amount shall be deemed to be allocated among the REMIC I Regular
Interests pro rata according to their Stated Principal Balances that, in the
absence of such any and all such exclusions, would have been outstanding
immediately after such Distribution Date by operation of the immediately
preceding sentence. Any reductions in the Uncertificated Principal Balances of
the respective REMIC I Regular Interests pursuant to the second preceding
sentence shall be deemed to constitute allocations of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
Provided that the Certificate Administrator receives the necessary
information from the Master Servicers and/or the Special Servicer, the
Certificate Administrator shall be responsible for performing all calculations
necessary in connection with the actual and deemed distributions to be made
pursuant to Section 4.01, the preparation of the Certificate Administrator
Reports pursuant to Section 4.02(a) and the actual and deemed allocations of
Realized Losses and Additional Trust Fund Expenses to be made pursuant to
Section 4.04. The Certificate Administrator shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement. Absent actual
knowledge of an error therein, the Certificate Administrator shall have no
obligation to recompute, recalculate or otherwise verify any information
provided to it by a Master Servicer. The calculations by the Certificate
Administrator contemplated by this Section 4.05 shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-3; 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 Class A-1, Class A-2, Class
A-3, Class A-4, Class A-5, Class A-6, Class X-1, Class X-2, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P and Class Q Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Regular
Interest 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 $25,000 in the case of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 and Class A-J
Certificates and $250,000 in the case of the remaining Regular Interest
Certificates, and in each such case in integral multiples of $1 in excess
thereof. The Class R and Class V Certificates will be issuable in denominations
representing Percentage Interests in the related Class of not less than 10%.
(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 or signatories of the
Certificate Registrar shall be entitled to all benefits under this Agreement,
subject to the following sentence, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, however, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Certificate Administrator 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 Trustee, the Depositor, the Master Servicers, the
Special Servicer and (if the Certificate Administrator is not the Certificate
Registrar) the Certificate Administrator, 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 Certificate Administrator resigns or is
removed in accordance with the terms hereof, the successor certificate
administrator shall immediately succeed to its duties as Certificate Registrar.
The Depositor, the Trustee, the Certificate Administrator (if it is not the
Certificate Registrar), each Master Servicer and the Special Servicer shall each
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.
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If three or more Holders make written request to the
Certificate Registrar, and such request states that such Holders 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 Holders propose to transmit, then the Certificate Registrar shall,
within 30 days after the receipt of such request, afford (or cause any other
Certificate Registrar to afford) the requesting Holders access during normal
business hours to the most recent list of Certificateholders held by the
Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest therein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable securities
or blue sky laws of any state or other jurisdiction within the United States,
its territories and possessions, or is otherwise made in accordance with the
Securities Act and such other securities or blue sky laws. If offers and sales
of any Certificate are made in any jurisdiction outside of the United States,
its territories and possessions, the Person making such offers and sales must
comply with all applicable laws of such jurisdiction.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Non-Registered Certificates or a Transfer of
such Certificate by the Depositor, any Underwriter or any of their respective
Affiliates or, in the case of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates, a Transfer thereof to a successor Depository or to
the applicable Certificate Owner(s) in accordance with Section 5.03), 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 hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B (except that, in the case of any proposed
transfer of a Class R Certificate or a Class V Certificate, such prospective
Transferee may provide a certificate substantially in the form attached hereto
as Exhibit F-2A only); or (ii) an Opinion of Counsel satisfactory to the
Certificate Administrator to the effect that such prospective Transferee is an
Institutional Accredited Investor or a Qualified Institutional Buyer (except
that, in the case of any proposed transfer of a Class R Certificate or a Class V
Certificate, such Opinion of Counsel must be to the effect that such prospective
Transferee is a Qualified Institutional Buyer) and 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, either Master Servicer,
the Special Servicer, the Tax Administrator, the Certificate Administrator, the
Trustee, the Fiscal Agent 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.
If a Transfer of any interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates is to be made without
registration under the Securities Act (other than in connection with the initial
issuance of the Book-Entry Non-Registered Certificates or a Transfer of any
interest therein by the Depositor, any Underwriter or any of their respective
Affiliates), then the Certificate Owner desiring to effect such Transfer shall
be required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit
F-2C, or (ii) an Opinion of Counsel to the effect that the prospective
Transferee is a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act. Except as provided in the
following two paragraphs, no interest in the Rule 144A Global Certificate for
any Class of Book-Entry Non-Registered Certificates shall be transferred to any
Person who takes delivery other than in the form of an interest in such Rule
144A Global Certificate. If any Transferee of an interest in the Rule 144A
Global Certificate for any Class of Book-Entry Non-Registered Certificates does
not, in connection with the subject Transfer, deliver to the Transferor the
Opinion of Counsel or the certification described in the preceding sentence,
then such Transferee shall be deemed to have represented and warranted that all
the certifications set forth in Exhibit F-2C hereto are, with respect to the
subject Transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule 144A
Global Certificate for a Class of Book-Entry Non-Registered Certificates may be
transferred (without delivery of any certificate or Opinion of Counsel described
in clauses (i) and (ii) of the first sentence of the preceding paragraph) by the
Depositor, any Affiliate of the
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Depositor or any Person designated in writing by the Depositor to any Person who
takes delivery in the form of a beneficial interest in the Regulation S Global
Certificate for such Class of Certificates upon delivery to the Certificate
Registrar of (x) a certificate to the effect that the Certificate Owner desiring
to effect such Transfer is the Depositor or an Affiliate of the Depositor and
(y) such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, and credit the
account of a Depository Participant by a denomination of interests in such
Regulation S Global Certificate, that is equal to the denomination of beneficial
interests in the Class X-1, 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 P or Class Q
Certificates, as applicable, to be transferred. Upon delivery to the Certificate
Registrar of such certification and such orders and instructions, the
Certificate Administrator, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Rule 144A
Global Certificate in respect of the Class X-1, 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
P or Class Q Certificates, as applicable, and increase the denomination of the
Regulation S Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
Also notwithstanding the foregoing, any interest in a Rule 144A Global
Certificate with respect to any Class of Book-Entry Non-Registered Certificates
may be transferred by any Certificate Owner holding such interest to any
Institutional Accredited Investor (other than a Qualified Institutional Buyer)
that takes delivery in the form of a Definitive Certificate of the same Class as
such Rule 144A Global Certificate upon delivery to the Certificate Registrar and
the Certificate Administrator of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Certificate Administrator to debit the account
of a Depository Participant by the denomination of the transferred interests in
such Rule 144A Global Certificate. Upon delivery to the Certificate Registrar of
the certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Certificate Administrator, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Rule 144A Global Certificate by the denomination of the
transferred interests in such Rule 144A Global Certificate, and shall cause a
Definitive Certificate of the same Class as such Rule 144A Global Certificate,
and in a denomination equal to the reduction in the denomination of such Rule
144A Global Certificate, to be executed, authenticated and delivered in
accordance with this Agreement to the applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in the
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D hereto certifying that such Transferee is not a United States
Securities Person. On or prior to the Release Date, beneficial interests in the
Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates may be held only through Euroclear or Clearstream. The Regulation S
Global Certificate for each Class of Book-Entry Non-Registered Certificates
shall be deposited with the Trustee as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor, any Affiliate
of the Depositor or any Person designated in writing by the Depositor to any
Person who takes delivery in the form of a beneficial interest in the Rule 144A
Global Certificate for such Class of Certificates upon delivery to the
Certificate Registrar of (x) a certificate to the effect that the Certificate
Owner desiring to effect such Transfer is the Depositor or an Affiliate of the
Depositor and (y) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and Euroclear to direct the
Certificate Administrator to debit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Rule 144A Global Certificate, that is equal to the denomination of beneficial
interests in the Class X-1, 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 P or Class Q
Certificates, as applicable, to be transferred. Upon delivery to the Certificate
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Registrar of such certification and orders and instructions, the Certificate
Administrator, subject to and in accordance with the applicable procedures of
the Depository, shall reduce the denomination of the Regulation S Global
Certificate in respect of the Class X-1, 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 P
or Class Q Certificates, as applicable, and increase the denomination of the
Rule 144A Global Certificate for such Class, by the denomination of the
beneficial interest in such Class specified in such orders and instructions.
None of the Depositor, the Underwriters, the Certificate Administrator,
the Trustee, the Fiscal Agent, the Master Servicers, the Special Servicer, the
Tax Administrator or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the Transfer of any Non-Registered Certificate or interest
therein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a Transfer of any Non-Registered
Certificate or interest therein shall, and does hereby agree to, indemnify the
Depositor, the Underwriters, the Certificate Administrator, the Trustee, the
Fiscal Agent, each Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be made
(A) to any Plan or (B) to any Person who is directly or indirectly purchasing
such Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of such
Certificate or interest therein by the prospective Transferee would result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or would
result in the imposition of an excise tax under Section 4975 of the Code. Except
in connection with the initial issuance of the Non-Registered Certificates or
any Transfer of a Non-Registered Certificate or any interest therein by the
Depositor, any Underwriter or any of their respective Affiliates or, in the case
of a Global Certificate for any Class of Book-Entry Non-Registered Certificates,
any Transfer thereof to a successor Depository or to the applicable Certificate
Owner(s) in accordance with Section 5.03, the Certificate Registrar shall refuse
to register the Transfer of a Definitive Non-Registered Certificate unless it
has received from the prospective Transferee, and any Certificate Owner
transferring an interest in a Global Certificate for any Class of Book-Entry
Non-Registered Certificates shall be required to obtain from its prospective
Transferee, either (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) alternatively, but only in the case of a
Certificate that is not a Class R or Class V Certificate, a certification to the
effect that the purchase and holding of such Certificate or interest therein by
such prospective Transferee is exempt from the prohibited transaction provisions
of Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code, by reason of
Sections I and III of PTCE 95-60; or (iii) alternatively, but only in the case
of a Non-Registered Certificate that is an Investment Grade Certificate (other
than, if applicable, a Class R or Class V Certificate) that is being acquired by
or on behalf of a Plan in reliance on the Underwriter Exemption, a certification
to the effect that such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored (within
the meaning of Section 3(16)(B) of ERISA) by the Trustee, the Certificate
Administrator, the Depositor, any Pooled Mortgage Loan Seller, either Master
Servicer, the Special Servicer, the Primary Servicer, any Sub-Servicer, any
Person responsible for the servicing of the Non-Trust-Serviced Pooled Mortgage
Loan, any Exemption Favored Party or any Borrower with respect to Pooled
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Pooled Mortgage Loans determined as of the Closing Date, or
by any Affiliate of such Person, and (Z) agrees that it will obtain from each of
its Transferees that is a Plan a written representation that such Transferee
satisfied the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y). It is hereby acknowledged that the forms of certification
attached hereto as Exhibit G-1 (in the case of Definitive Non-Registered
Certificates) and Exhibit G-2 (in the case of ownership interests in Book-Entry
Non-Registered Certificates) are acceptable for purposes of the preceding
sentence. In lieu of one of the foregoing certifications, a prospective
Transferee may deliver to the Certificate Registrar a certification of facts and
an
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Opinion of Counsel which establish to the reasonable satisfaction of the Trustee
that such Transfer will not result in a violation of Section 406 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code, and will not subject the Trustee, the Depositor, the
Certificate Administrator, the Fiscal Agent, a Master Servicer, the Special
Servicer, the Primary Servicer or a Sub-Servicer to any obligation in addition
to those undertaken in this Agreement; in the case of an ownership interest in a
Book-Entry Non-Registered Certificate, the prospective Transferee shall also
deliver to the Certificate Owner from whom it is acquiring the interest a copy
of such certification of facts and Opinion of Counsel, and a certification that
these documents have been delivered to the Certificate Registrar. If any
Transferee of a Certificate (including a Registered Certificate) or any interest
therein does not, in connection with the subject Transfer, deliver to the
Certificate Registrar (in the case of a Definitive Certificate) or the
Transferor (in the case of ownership interests in a Book-Entry Certificate) any
certification and/or Opinion of Counsel contemplated by the second preceding
sentence, then such Transferee shall be deemed to have represented and warranted
that either: (i) such Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) the purchase and holding of
such Certificate or interest therein by such Transferee are exempt from the
prohibited transaction provisions of Sections 406(a) and (b) and 407 of ERISA
and the excise taxes imposed on such prohibited transactions by Sections 4975(a)
and (b) of the Code by reason of an Underwriter Exemption (in the case of such a
Certificate that is an Investment Grade Certificate) or by reason of Sections I
and III of PTCE 95-60 (in the case of such a Certificate that is not an
Investment Grade Certificate).
(d) (i) Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Certificate Administrator under clause (ii) (A)
below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Administrator 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 disposition. The rights of each Person acquiring any Ownership Interest
in a Class R Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall be a Permitted Transferee and shall
promptly notify the Tax Administrator and the Certificate
Administrator of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar
shall require delivery to it, and shall not register the
Transfer of any Class R Certificate until its receipt, of an
affidavit and agreement substantially in the form attached
hereto as Exhibit H-1 (a "Transfer Affidavit and Agreement"),
from the proposed Transferee, representing and warranting,
among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest
in the Class R Certificate that is the subject of the
proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if
a Responsible Officer of either the Certificate Administrator
or the Certificate Registrar has actual knowledge that the
proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Class R Certificate to
such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Class R 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 Class R Certificate and (2) not to Transfer its
Ownership Interest in such Class R Certificate unless it
provides to the Certificate Registrar a certificate
substantially in the form
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attached hereto as Exhibit H-2 stating that, among other
things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Class R Certificate, by purchasing such Ownership Interest,
agrees to give the Tax Administrator and the Certificate
Administrator written notice that it is a "pass-through
interest holder" within the meaning of temporary Treasury
Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R Certificate, if
it is, or is holding an Ownership Interest in a Class R
Certificate on behalf of, a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Class R Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Class
R 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 Class R
Certificate. None of the Depositor, the Certificate
Administrator, the Trustee or the Certificate Registrar shall
be under any liability to any Person for any registration of
Transfer of a Class R 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 Class
R Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that retroactive
restoration of the rights of the preceding Holder of such
Class R Certificate as described in clause (ii)(A) above
shall be invalid, illegal or unenforceable, the Certificate
Administrator shall have the right, but not the obligation,
to cause the Transfer of such Class R Certificate to a
Permitted Transferee selected by the Certificate
Administrator on such terms as the Certificate Administrator
may choose, and the Certificate Administrator shall not be
liable to any Person having an Ownership Interest in such
Class R Certificate as a result of the Certificate
Administrator's exercise of such discretion. Such purported
Transferee shall promptly endorse and deliver such Class R
Certificate in accordance with the instructions of the
Certificate Administrator. Such Permitted Transferee may be
the Certificate Administrator itself or any Affiliate of the
Certificate Administrator.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed (A) as a result
of the Transfer of an Ownership Interest in a Class R Certificate to any Person
who is a Disqualified Organization, 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 Class R Certificate and (B) as a result of any
regulated investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of the Code
that holds an Ownership Interest in a Class R Certificate having as among its
record holders at any time any Person which is a Disqualified Organization, and
each of the other parties hereto shall furnish to the Tax Administrator all
information in its possession necessary for the Tax Administrator to discharge
such obligation. The Person holding such Ownership Interest shall be responsible
for the reasonable compensation of the Tax Administrator for providing
information thereto pursuant to this subsection (d)(iii) and Section
10.01(d)(i).
(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 Administrator and the Tax
Administrator the following:
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(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory to
the Certificate Administrator and the Tax Administrator,
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 Trustee,
the Tax Administrator or the Trust), to the effect that doing
so will not (1) cause any REMIC Pool to cease to qualify as a
REMIC or be subject to an entity-level tax caused by the
Transfer of any Class R Certificate to a Person which is not
a Permitted Transferee or (2) cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R Certificate to a Person
that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Certificate Registrar (or, in the case of an interest
in a Book-Entry Non-Registered Certificate, to the Certificate Owner that is
transferring such interest) a certification to the effect that, and such other
evidence as may be reasonably required by the Certificate Administrator (or such
Certificate Owner) to confirm that, it has (i) sole investment discretion with
respect to each such account and (ii) full power to make the applicable
foregoing acknowledgments, representations, warranties, certifications and
agreements with respect to each such account as set forth in Subsections (b),
(c) and/or (d), as appropriate, of this Section 5.02.
(f) 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 in authorized denominations evidencing a like
aggregate Percentage Interest in such Class.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class evidencing a
like aggregate Percentage Interest in such Class 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 and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) 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.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Administrator or 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.
(j) 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.
(k) In connection with the foregoing Sections 5.02(b), (c) and (d), in
no case shall the Depositor be responsible for the costs or expenses of any
certificates, opinions or agreements contemplated by such Sections 5.02(b), (c)
and (d).
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SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class X-1, Class X-2, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P and
Class Q Certificates shall, in the case of each such Class, initially be issued
as one or more Certificates registered in the name of the Depository or its
nominee and, except as provided in Section 5.02(b) and Section 5.03(c), a
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. The Class X-1, 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 P and Class Q Certificates initially sold to Qualified
Institutional Buyers in reliance on Rule 144A or in reliance on another
exemption from the registration requirements of the Securities Act shall, in the
case of each such Class, be represented by the Rule 144A Global Certificate for
such Class, which shall be deposited with the Certificate Administrator as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository. The Class X-1, 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 P and Class
Q Certificates initially sold in offshore transactions in reliance on Regulation
S shall, in the case of each such Class, be represented by the Regulation S
Global Certificate for such Class, which shall be deposited with the Certificate
Administrator as custodian for the Depository and registered in the name of Cede
& Co. as nominee of the Depository. 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 Certificate Administrator, the Master Servicers, the Special
Servicer, the Trustee, the Fiscal Agent, the Depositor and the Certificate
Registrar may for all purposes, including the making of payments due on the
Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders hereunder. Except as
expressly provided to the contrary herein, the rights of Certificate Owners with
respect to the Book-Entry Certificates shall be limited to those established by
law and agreements between such Certificate Owners and the Depository
Participants and brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Certificate Administrator 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 Certificate Administrator, 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, the Certificate Administrator 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, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicers, the Special Servicer, the Certificate Administrator, the Trustee or
the Certificate Registrar shall be liable for any delay in delivery of such
instructions, and each of them may conclusively rely on, and shall be protected
in relying on, such
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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
Certificate Administrator 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) 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 Certificate Administrator and the Certificate Registrar such security or
indemnity as may be reasonably required by them to save each of them harmless,
then, in the absence of actual notice to the Certificate Administrator or the
Certificate Registrar that such Certificate has been acquired by a bona fide
purchaser, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the same
Class and like Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Certificate Administrator 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 Certificate Administrator and
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the 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 Servicers, the Special Servicer, the Certificate Administrator, the
Trustee, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever and none of the Depositor, the Master
Servicers, the Special Servicer, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.06. Certification by Certificate Owners.
To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Certificate
Administrator shall make such determination based on a certificate of such
Person which shall be substantially in the form of paragraph 1 of Exhibit K-1
hereto (or such other form as shall be reasonably acceptable to the Certificate
Administrator) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that none of the Trustee, the Certificate
Administrator or the Certificate Registrar shall knowingly recognize such Person
as a Certificate Owner if such Person, to the actual knowledge of a Responsible
Officer of the Trustee, the Certificate Administrator or the Certificate
Registrar, as the case may be, acquired its Ownership Interest in a Book-Entry
Certificate in violation of Section 5.02(c), or if such Person's certification
that it is a Certificate Owner is in direct conflict with information actually
known by a Responsible Officer of the Trustee, the Certificate Administrator or
the Certificate Registrar, with respect to the identity of a Certificate Owner.
The Trustee, the Certificate Administrator and the Certificate Registrar shall
each exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee, the Certificate Administrator or the
Certificate Registrar, as the case may be.
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SECTION 5.07. Appointment of Authenticating Agents.
(a) The Certificate Administrator may appoint at its expense an
Authenticating Agent, which shall be authorized to act on behalf of the
Certificate Administrator in authenticating Certificates. The Certificate
Administrator shall cause any such Authenticating Agent to execute and deliver
to the Certificate Administrator an instrument in which such Authenticating
Agent shall agree to act in such capacity, 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 carry on 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 Certificate Administrator hereunder.
The appointment of an Authenticating Agent shall not relieve the Certificate
Administrator from any of its obligations hereunder, and the Certificate
Administrator shall remain responsible for all acts and omissions of the
Authenticating Agent. In the absence of any other Person appointed in accordance
herewith acting as Authenticating Agent, the Certificate Administrator hereby
agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Certificate
Administrator 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 Certificate
Administrator.
(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 appointed in accordance with this Section
5.07 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Certificate Administrator, the Trustee, the Certificate
Registrar and the Depositor. The Certificate Administrator may at any time
terminate the agency of any Authenticating Agent appointed in accordance with
this Section 5.07 by giving written notice of termination to such Authenticating
Agent, the Trustee, the Certificate Registrar and the Depositor. Upon receiving
a notice of such a 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 5.07, the Certificate Administrator may appoint a
successor Authenticating Agent, in which case the Certificate Administrator
shall give written notice of such appointment to the Trustee, 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
5.07. 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.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS
AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Master Servicers and the
Special Servicer.
The Depositor, the Master Servicers 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, each Master Servicer
and the Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a
Master Servicer or the Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers and
the Special Servicer shall each keep in full effect its existence, rights and
franchises as a corporation, bank, trust company, partnership, limited liability
company, association or other legal entity under the laws of the jurisdiction
wherein it was organized, and each shall obtain and preserve its qualification
to do business as a foreign entity in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) Each of the Depositor, the Master Servicers and the Special
Servicer may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, a Master
Servicer or the Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, a Master Servicer, the Special Servicer, shall be
the successor of the Depositor, such 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 parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of either Master Servicer or the Special
Servicer unless (i) such succession will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency for the Rated Certificates) and, solely with
respect to the applicable Master Servicer for the 00 Xxxx Xxxxx Loan Group and
the Special Servicer, for as long as the 11 Penn Plaza Loan Group is serviced
and administered under this Agreement, will not result in an Adverse Rating
Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities (as confirmed in writing to the Trustee by each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities) and (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 2.05 (in the case of a
successor or surviving Person to PAR as a Master Servicer), Section 2.06 (in the
case of a successor or surviving Person to WFB as a Master Servicers) or Section
2.07 (in the case of a successor or surviving Person to the Special Servicer).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers and the Special Servicer.
(a) None of the Depositor, the Master Servicers or the Special Servicer
shall be under any liability to the Trust, the Trustee, the Certificateholders
or any Serviced Non-Pooled Mortgage Loan Noteholder 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, a Master
Servicer or the Special Servicer against any liability to the Trust, the
Trustee, the Certificateholders or any Serviced Non-Pooled Mortgage Loan
Noteholder for the breach of a representation or warranty made by such party
herein, 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, or negligent disregard of, such
party's obligations or duties hereunder. The Depositor, each Master Servicer,
the Special Servicer and any director, member, manager, officer,
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employee or agent of any such party may rely in good faith on any document of
any kind conforming to the requirements of this Agreement for the truth and
accuracy of the contents of that document (and as to certificates and opinions,
including Opinions of Counsel, for the truth of the statements made therein and
the correctness of the opinions expressed therein) reasonably believed or in
good faith believed by it to be genuine and to have been signed or presented by
the proper party or parties, which document, prima facie, is properly executed
and submitted by any Person, or any employee or agent of any Person (including
legal counsel as to opinions), respecting any matters arising hereunder. The
Depositor, each Master Servicer, the Special Servicer and any director, member,
manager, officer, employee or agent of any such party, shall be indemnified and
held harmless by the Trust out of the relevant Collection Account, as provided
in Section 3.05(a), or the Distribution Account, as provided in Section 3.05(b),
against any loss, liability, cost or expense (including reasonable legal fees
and expenses) incurred in connection with any legal action or claim relating to
this Agreement or the Certificates, other than any loss, liability, cost or
expense: (i) specifically required to be borne thereby pursuant to the terms
hereof; (ii) that constitutes a Servicing Advance that is otherwise reimbursable
under this Agreement; or (iii) incurred in connection with any legal action or
claim against such party resulting from any breach of a representation or
warranty made herein, any misfeasance, bad faith or negligence in the
performance of, or negligent disregard of, obligations or duties hereunder or
any willful or negligent violation of applicable law. None of the Depositor, the
Master Servicers 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, except in the case of a legal action
the costs of which such party is specifically required hereunder to bear, in its
opinion does not involve it in any ultimate expense or liability for which it
would not be reimbursed hereunder; provided, however, that the Depositor, a
Master Servicer or the Special Servicer may in its discretion undertake any such
action which it may reasonably 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 (or, if the Serviced Mortgage Loan Group
is involved, the rights of the Certificateholders and the related Serviced
Non-Pooled Mortgage Loan Noteholder(s) (as a collective whole)). 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, and the
Depositor, such Master Servicer or the Special Servicer, as the case may be,
shall be entitled to be reimbursed therefor from the relevant Collection
Account, as provided in Section 3.05(a), or the Distribution Account, as
provided in Section 3.05(b). Notwithstanding the foregoing, if and to the extent
that any loss, liability, cost or expense that is, pursuant to this Section
6.03(a), required to be borne by the Trust out of the Distribution Account or a
Collection Account, relates to any Serviced Mortgage Loan Group, if such
Serviced Mortgage Loan Group includes one or more Serviced Non-Pooled Pari Passu
Companion Loans, such loss, liability, cost or expense shall be payable out of
amounts on deposit in the relevant Collection Account and the related Companion
Note Custodial Account(s) (withdrawals from those accounts to be made in
accordance with the related Mortgage Loan Group Intercreditor Agreement and pro
rata according to the respective outstanding principal balances of the Pooled
Mortgage Loan and such Serviced Non-Pooled Pari Passu Companion Loan included in
such Serviced Mortgage Loan Group), prior to payment from funds in the
Distribution Account or a Collection Account that are unrelated to such Serviced
Mortgage Loan Group.
(b) In addition, none of the Master Servicers and the Special Servicer
shall have any liability with respect to, and each of the Master Servicers and
the Special Servicer shall be entitled to rely, as to the truth of the
statements made therein and the correctness of the opinions expressed therein,
on any certificates or opinions furnished to, and accepted in good faith by,
such Master Servicer or the Special Servicer, as the case may be, and conforming
to the requirements of this Agreement. Each of the Master Servicers and the
Special Servicer may rely in good faith on information provided to it by the
other parties hereto (unless the provider and the recipient of such information
are the same Person or Affiliates) and by the Borrowers and property managers,
and will have no duty to investigate or verify the accuracy thereof. Each of the
Master Servicers and the Special Servicer may rely, and shall be protected in
acting or refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper format) as
contemplated by and in accordance with this Agreement and reasonably believed or
in good faith believed by such Master Servicer or the Special Servicer, as the
case may be, to be genuine and to have been signed or presented by the proper
party or parties and each of them may consult with counsel, in which case any
written advice of counsel or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of
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Counsel. Furthermore, none of the Master Servicers and the Special Servicer
shall have any liability under this Agreement for any failure of any other such
Person (or any other party to this Agreement) to perform such Person's
obligations or duties hereunder.
SECTION 6.04. Resignation of the Master Servicers and the Special
Servicer.
(a) Each of the Master Servicers and 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 such 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 such Master Servicer or the Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of a Master Servicer or the Special Servicer shall be evidenced by an Opinion of
Counsel to such effect which shall be delivered to the Trustee, with a copy to
the Certificate Administrator and the Controlling Class Representative (and each
affected Serviced Non-Pooled Mortgage Loan Noteholder). Unless applicable law
requires the resignation of a Master Servicer or the Special Servicer (as the
case may be) 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 3.27 or Section 7.02 hereof; provided that, if no successor to such
Master Servicer or the Special Servicer, as the case may be, shall have been so
appointed and have accepted appointment within 90 days after such Master
Servicer or the Special Servicer, as the case may be, has given notice of such
resignation, the resigning Master Servicer or Special Servicer, as the case may
be, may petition any court of competent jurisdiction for the appointment of a
successor thereto.
(b) In addition, each of the Master Servicers and the Special Servicer
shall have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
has been found that is (a) reasonably acceptable to the Trustee, (b) solely in
the case of a successor to a Master Servicer, reasonably acceptable to the
Controlling Class Representative in its discretion (unless such successor is on
S&P's approved master servicer list or such successor is the other Master
Servicer), and (c) solely in the case of the Special Servicer if it is a
resigning Special Servicer, acceptable to the Controlling Class Representative
in its discretion, (ii) the resigning party has consulted with (although, except
as provided for above, it shall not be required to have obtained the approval
of) the Controlling Class Representative with respect to the identity and
quality of its proposed successor unless such successor is the other Master
Servicer, (iii) the succession will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency for the Rated Certificates) and, solely with
respect to the applicable Master Servicer for the 00 Xxxx Xxxxx Loan Group and
the Special Servicer, for as long as the 11 Penn Plaza Loan Group is serviced
and administered under this Agreement, will not result in an Adverse Rating
Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities (as confirmed in writing to the Trustee by each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities), (iv) the resigning party pays all costs and expenses in connection
with such transfer, and (v) the successor accepts appointment in writing prior
to the effectiveness of such resignation.
(c) None of the Master Servicers and the Special Servicer shall be
permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, none of the Master Servicers and
the Special Servicer shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, 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 a Master
Servicer or the Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to such Master Servicer (including without
limitation, in the case of the Master Servicer that is the Servicer Report
Administrator, the Servicer Report Administrator Fee) or the Special Servicer,
as the case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor, except (in the case of the Special
Servicer) to the extent provided in Section 3.11(c).
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SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicers and the Special Servicer.
Each of the Master Servicers and the Special Servicer shall afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained by it in respect of its rights and obligations
hereunder and access to such of its officers as are responsible for such
obligations. Upon reasonable request and as reasonably related to the
performance of the obligations of the Master Servicers and the Special Servicer,
as applicable, pursuant to this Agreement, each of the Master Servicers and the
Special Servicer shall furnish the Depositor and the Trustee with its most
recent publicly available annual audited financial statements (or, if those are
not available, then the most recent publicly available audited annual financial
statements of such Person's corporate parent) and such other information as is
publicly available regarding its business, affairs, property and condition,
financial or otherwise. Each of the Master Servicers and the Special Servicer
may affix to any such information described in this Section 6.05 provided by it
any disclaimer it deems appropriate in its reasonable discretion. The Depositor
may, but is not obligated to, enforce the obligations of any Master Servicer or
Special Servicer hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of any Master Servicer or the
Special Servicer hereunder or exercise the rights of a Master Servicer or the
Special Servicer hereunder; provided, however, that none of the Master Servicers
and the Special Servicer shall be relieved of any of its obligations hereunder
by virtue of such performance by the Depositor or its designee. The Depositor
shall not have any responsibility or liability for any action or failure to act
by a Master Servicer or the Special Servicer and is not obligated to supervise
the performance of any Master Servicer or Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Master Servicers and Special Servicer May Own
Certificates.
Any Master Servicer, Special Servicer or Affiliate thereof may become
the Holder of (or, in the case of a Book-Entry Certificate, Certificate Owner
with respect to) any Certificate with (except as otherwise set forth in the
definition of "Certificateholder") the same rights it would have if it were not
a Master Servicer, the Special Servicer or an Affiliate thereof. If, at any time
during which any Master Servicer, Special Servicer or Affiliate of a 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, such
Master Servicer or the Special Servicer, as the case may be, proposes to take
any action (including for this purpose, omitting to take a particular action)
that is not expressly prohibited by the terms hereof and would not, in the
reasonable judgment of such Master Servicer or the Special Servicer (as the case
may be), violate the Servicing Standard, but that, if taken, might nonetheless,
in the reasonable judgment of such Master Servicer or the Special Servicer (as
the case may be), be considered by other Persons to violate the Servicing
Standard, then such Master Servicer or the Special Servicer, as the case may be,
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Certificate Administrator (with a copy to the Trustee) a
written notice that (a) states that it is delivered pursuant to this Section
6.06, (b) identifies the Percentage Interest in each Class of Certificates
beneficially owned by such Master Servicer or the Special Servicer, as the case
may be, or by an Affiliate thereof and (c) describes in reasonable detail the
action that such Master Servicer or the Special Servicer, as the case may be,
proposes to take. The Certificate Administrator, upon receipt of such notice,
shall forward it to the Certificateholders (other than such Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with a request for approval by the Certificateholders of each such
proposed action. 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 such Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as the case may be) shall have consented in
writing (with a copy to each related Serviced Non-Pooled Mortgage Loan
Noteholder, if the Serviced Mortgage Loan Group is involved) to the proposal
described in the written notice, and if such Master Servicer or the Special
Servicer, as the case may be, shall act as proposed in the written notice, such
action shall be deemed to comply with the Servicing Standard. The Certificate
Administrator shall be entitled to reimbursement from the subject Master
Servicer or the Special Servicer, as applicable, for the reasonable expenses of
the Certificate Administrator incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that any Master Servicer or 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.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) with respect to a Master Servicer, any failure by such Master
Servicer to deposit into the Collection Account maintained by such Master
Servicer or (if it is the applicable Master Servicer for the Serviced
Mortgage Loan Group) related Companion Note Custodial Account or any amount
required to be so deposited under this Agreement, which failure continues
unremedied for one Business Day following the date on which such deposit was
first required to be made; or
(ii) with respect to the Special Servicer, any failure by the
Special Servicer to deposit into the REO Account maintained by it or to
deposit, or remit to either Master Servicer for deposit, into a Collection
Account and/or Companion Note Custodial Account, as applicable, any amount
required to be so deposited or remitted under this Agreement, which failure
continues unremedied for one Business Day following the date on which such
deposit or remittance, as the case may be, was first required to be made; or
(iii) (A) any failure by a Master Servicer to remit to the
Certificate Administrator for deposit into the Distribution Account, on any
P&I Advance Date, the full amount of P&I Advances required to be made by
such Master Servicer on such date or, on any Master Servicer Remittance
Date, the full amount of the Master Servicer Remittance Amount and any
Compensating Interest Payment required to be remitted by such Master
Servicer on such date, which failure continues unremedied until 9:00 a.m.
(New York City time) on the related Distribution Date; provided, however,
that if a Master Servicer fails to make any deposit contemplated by this
Section 7.01(a)(iii), including any P&I Advance, which deposit is required
to be made by such Master Servicer on any P&I Advance Date or Master
Servicer Remittance Date (without regard to any grace period), then such
Master Servicer shall pay to the Certificate Administrator, for the account
of the Certificate Administrator, interest on such late remittance at the
Reimbursement Rate from and including such P&I Advance Date or such Master
Servicer Remittance Date to but excluding the related Distribution Date; or
(B) solely in the case of WFB (or and successor thereto) as a Master
Servicer, the occurrence of any event or circumstance that constitutes an
"Event of Default" of such Master Servicer according to the provisions of
Section 3.02(d), which event or circumstance is not cured at the time and in
the manner set forth in such Section; or
(iv) any failure by a Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance remains
unmade for a period of one Business Day following the date on which notice
shall have been given to such Master Servicer by the Trustee as provided in
Section 3.11(f); or
(v) any failure by the Special Servicer to timely make (or request
the applicable Master Servicer to make) any Servicing Advance required to be
made by it hereunder, which Servicing Advance remains unmade for a period of
one Business Day following the date on which notice has been given to the
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of a 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 such Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which failure
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 such Master Servicer or the Special Servicer, as the case may be,
by any other party hereto or to such Master Servicer or the Special
Servicer, as the case may be, with a copy to each other party hereto, or by
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the Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that, with respect to any such failure that is not
curable within such 30-day period, such Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of 60
days to effect such cure so long as such 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
(vii) any breach on the part of a 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 such Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to such Master
Servicer or the Special Servicer, as the case may be, with a copy to each
other party hereto, or by the Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that, with respect to any such
breach that is not curable within such 30-day period, such Master Servicer
or the Special Servicer, as the case may be, shall have an additional cure
period of 60 days to effect such cure so long as such Master Servicer or the
Special Servicer, as the case may be, has commenced to cure such breach
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
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against a
Master Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(ix) a 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, marshalling 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
(x) a 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 association or
company action in furtherance of the foregoing; or
(xi) a Master Servicer or the Special Servicer receives actual
knowledge that Xxxxx'x has (A) qualified, downgraded or withdrawn its rating
or ratings of one or more Classes of Certificates, or (B) placed one or more
Classes of Certificates on "watch status" in contemplation of possible
rating downgrade or withdrawal (and such "watch status" placement shall not
have been withdrawn by Xxxxx'x within 90 days of such actual knowledge by
the applicable Master Servicer or the Special Servicer, as the case may be),
and, in case of either of clause (A) or (B), citing servicing concerns with
such Master Servicer or the Special Servicer as the sole or a material
factor in such rating action; or
(xii) a Master Servicer is removed from S&P's approved master
servicer list or the Special Servicer is removed from S&P's approved special
servicer list and, in either case, is not reinstated within 60 days and the
ratings then assigned by S&P to any Classes of Rated Certificates are
downgraded, qualified or withdrawn (including, without limitation, being
placed on a negative credit watch) in connection with such removal.
When a single entity acts as two or more of the capacities of the
Master Servicers and the Special Servicer, an Event of Default (other than an
event described in clauses (xi) and (xii) above) in one capacity shall
constitute an Event of Default in both or all such capacities.
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(b) If any Event of Default with respect to any Master Servicer or
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Trustee may, and at the written direction of either the Holders of Certificates
entitled to not less than 25% of the Voting Rights or (alternatively, but solely
in the case of the Special Servicer) the Controlling Class Representative, the
Trustee shall (subject to applicable bankruptcy or insolvency law in the case of
clauses (viii) through (x) of Section 7.01(a)), terminate, by notice in writing
to the Defaulting Party (with a copy of such notice to each other party hereto),
all of the rights and obligations (accruing from and after such notice) of the
Defaulting Party under this Agreement and in and to the Trust Fund (other than
as a Holder of any Certificate). From and after the receipt by the Defaulting
Party of such written notice, all of the responsibilities, duties, authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates, the Mortgage Loans or otherwise (other than as a Holder of any
Certificate or as a Serviced Non-Pooled Mortgage Loan Noteholder, if
applicable), 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 (provided, however, that each of the Master
Servicers and the Special Servicer shall, if terminated pursuant to this Section
7.01(b), continue to be obligated to pay and entitled to receive all amounts
accrued or owing by or to it under this Agreement on or prior to the date of
such termination, whether in respect of Advances or otherwise, and it and its
members, managers, directors, officers, employees and agents shall continue to
be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Each of the Master Servicers and the Special Servicer agrees that,
if it is terminated pursuant to this Section 7.01(b), it shall promptly (and in
any event no later than 20 days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested
thereby to enable the Trustee to assume the functions hereunder of such Master
Servicer or the Special Servicer, as the case may be, and shall otherwise
cooperate with the Trustee in effecting the termination of the rights and
responsibilities hereunder of such Master Servicer or the Special Servicer, as
the case may be, including the transfer within five Business Days to the Trustee
for administration by it of all cash amounts that at the time are or should have
been credited by a Master Servicer to its Collection Account or any Companion
Note Custodial Account (if such Master Servicer is the applicable Master
Servicer for the related Serviced Mortgage Loan Group), the Distribution Account
or any Servicing Account or Reserve Account held by it (if it is the Defaulting
Party) or by the Special Servicer to its REO Account, a Collection Account, any
Companion Note Custodial Account or any Servicing Account or Reserve Account
held by it (if it 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 if any Master Servicer or Special Servicer is terminated pursuant
to this Section 7.01(b), such Master Servicer or the Special Servicer, as the
case may be, shall continue to be obligated to pay and entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its members, managers, directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any costs or expenses (including those of any other party hereto)
incurred in connection with any actions to be taken by a terminated Master
Servicer or Special Servicer pursuant to this paragraph shall be borne by such
Master Servicer or the Special Servicer, as the case may be (and, in the case of
the Trustee's costs and expenses, if not paid within a reasonable time, shall be
borne by the Trust out of the Collection Account).
If an Event of Default on the part of the applicable Master Servicer
for the 00 Xxxx Xxxxx Loan Group occurs that affects the holder of the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan and such Master Servicer is not
terminated pursuant to the provisions set forth above, then notwithstanding that
the Event of Default may be waived by the Certificateholders, the holder of the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan shall be entitled to require
the applicable Master Servicer to appoint a Sub-Servicer that will be
responsible for servicing the 00 Xxxx Xxxxx Loan Group; provided that such
holder pays or causes to be paid the costs of the applicable Rating Agency
Confirmation described below. In connection with the appointment of a
Sub-Servicer in accordance with this paragraph, both (i) either (A) such
Sub-Servicer shall be on the S&P approved list of master servicers or (B) the
applicable Master Servicer shall obtain, at the expense of the holder of the 11
Penn Plaza Non-Pooled Pari Passu Companion Loan, a written confirmation from S&P
to the effect that the appointment of such Sub-Servicer will not result in an
Adverse Rating Event with respect
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to any Class of Rated Certificates rated by S&P and (ii) the applicable Master
Servicer shall obtain, at the expense of the holder of the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan, a written confirmation from each
applicable Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities to the effect that such appointment will not result in an
Adverse Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari
Passu Companion Loan Securities rated by such applicable Rating Agency. In no
event shall any waiver of an Event of Default pursuant to Section 7.04 affect
the rights of the holder of the 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan under this paragraph.
(c) Notwithstanding Section 7.01(b) of this Agreement, if a Master
Servicer receives a notice of termination solely due to an Event of Default
under Section 7.01(a)(xi) or (xii) and the terminated Master Servicer provides
the Trustee with the appropriate "request for proposal" materials within the
five (5) Business Days after such termination, then such Master Servicer shall
continue to serve as Master Servicer, if requested to do so by the Trustee, and
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 for
which the terminated Master Servicer is the applicable Master Servicer from at
least three (3) Persons qualified to act as successor Master Servicer hereunder
in accordance with Section 6.02 and Section 7.02 for which the Trustee has
received written confirmation from each Rating Agency for the Rated Certificates
that the appointment of such Person would not result in an Adverse Rating Event
with respect to any Class of Rated Certificates rated by such Rating Agency and,
if the terminated Master Servicer is the applicable Master Servicer for the 11
Penn Plaza Loan Group and the 11 Penn Plaza Loan Group is then serviced and
administered under this Agreement, written confirmation from each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities that the appointment of such Person would not result in an Adverse
Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities rated by such Rating Agency (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, however, that (i) at the Trustee's request, the terminated
Master Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids; (ii) prior to making such solicitation, the Trustee or, upon
request of the Trustee, the terminated Master Servicer, shall have consulted
with (although it shall not be required to have obtained the approval of) the
Controlling Class Representative with respect to the identity and quality of
each of the Persons from whom the Trustee is to solicit bids; and (iii) the
Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the subject 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 with respect to the applicable Mortgage Loans, and to agree to
be bound by the terms hereof, within forty-five (45) days after the receipt by
the applicable Master Servicer of a notice of termination. The Trustee shall
solicit bids (i) on the basis of such successor Master Servicer retaining all
applicable Sub-Servicers to continue the primary servicing of the applicable
Serviced Mortgage Loans pursuant to the terms of the respective Sub-Servicing
Agreements and entering into a Sub-Servicing Agreement with the terminated
Master Servicer to service each of the Serviced Mortgage Loans for which it was
the applicable Master Servicer and not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to, for each Serviced Mortgage Loan
serviced, the excess of the related Master Servicing Fee Rate minus the sum of
two basis points and the related Excess Servicing Fee Rate (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each applicable
Sub-Servicing Agreement and each applicable Sub-Servicer (other than a
Designated Sub-Servicer and its Sub-Servicing Agreement) that it is permitted to
terminate in accordance with Section 3.22 and having no obligation to enter into
a Sub-Servicing Agreement with the terminated Master Servicer (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 forty-five (45) days after the termination of the terminated Master
Servicer.
(d) Upon the assignment and acceptance of the applicable master
servicing (including, in the case of an assignment of the rights of PAR or any
successor thereto as a Master Servicer, the servicer report administrative)
rights
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hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted to the terminated Master Servicer the amount of such cash bid
received from the Successful Bidder (net of "out-of-pocket" expenses incurred in
connection with obtaining such bid and transferring servicing).
(e) If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within forty-five (45) days after the related Master
Servicer received a notice of termination or no Successful Bidder was identified
within such forty-five (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 any Master Servicer or Special Servicer resigns
pursuant to Section 6.04(a) or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, subject to Section 3.27, be the successor in
all respects to such 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 be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on such Master
Servicer or the Special Servicer, as the case may be, by the terms and
provisions hereof, including, if a Master Servicer is the resigning or
terminated party, such Master Servicer's obligation to make Advances; provided,
however, that (i) any failure to perform such duties or responsibilities caused
by the failure of such Master Servicer or the Special Servicer, as the case may
be, to cooperate or to provide information or monies as required by Section 7.01
shall not be considered a default by the Trustee hereunder and (ii) in the case
of a terminated Master Servicer, the Trustee shall cease to act as successor
Master Servicer if an alternative successor is appointed pursuant to Section
7.01(c). Neither the Trustee nor any other successor shall be liable for any of
the representations and warranties of the resigning or terminated party or for
any losses incurred by the resigning or terminated party pursuant to Section
3.06 hereunder nor shall the Trustee or any other successor 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 for future services rendered if the
resigning or terminated party had continued to act hereunder. Notwithstanding
the above, if it is unwilling to so act, the Trustee may (and, if it is unable
to so act, or if the Trustee is not approved as an acceptable master servicer or
special servicer, as the case may be, by each Rating Agency, or if the Holders
of Certificates entitled to a majority of all the Voting Rights or the
Controlling Class Representative so request in writing, the Trustee shall),
promptly appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the resigning or
terminated Master Servicer or Special Servicer, as the case may be, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of such Master Servicer or the Special Servicer, as the case may be, hereunder;
provided, however, that (i) such appointment does not result in an Adverse
Rating Event with respect to any Class of Rated Certificates (as confirmed in
writing to the Trustee by each applicable Rating Agency for the Rated
Certificates) and (if the 11 Penn Plaza Loan Group is then serviced and
administered under this Agreement) also does not result in an Adverse Rating
Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion
Loan Securities (as confirmed in writing to the Trustee by each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities ); and (ii) if such successor (in the case of a successor (other than
if the other Master Servicer is such successor) to a resigning or terminated
Master Servicer) is not on S&P's approved master servicer list, such successor
is reasonably acceptable to the Controlling Class Representative and, if such
successor (other than if such successor is the other Master Servicer) is on
S&P's approved master servicer list, the Controlling Class Representative shall
have been consulted with respect to the identity of (although it need not have
approved) such successor. No appointment of a successor to any Master Servicer
or Special Servicer hereunder shall be effective until the assumption by such
successor of all its responsibilities, duties and liabilities hereunder, and
pending such appointment and assumption, the Trustee shall act in such capacity
as hereinabove provided. In connection with any such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on the Mortgage Loans or otherwise 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. The Depositor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
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If the Trustee or an Affiliate acts pursuant to this Section 7.02 as
successor to the resigning or terminated Master Servicer, it may reduce such
Master Servicer's Excess Servicing Fee Rate to the extent that its or such
Affiliate's compensation as successor Master Servicer would otherwise be below
the market rate servicing compensation. If the Trustee elects to appoint a
successor to the resigning or terminated Master Servicer other than itself or an
Affiliate pursuant to this Section 7.02, it may reduce such Master Servicer's
Excess Servicing Fee Rate to the extent reasonably necessary (in the sole
discretion of the Trustee) for the Trustee to appoint a qualified successor
Master Servicer that meets the requirements of this Section 7.02.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of a Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to a Master
Servicer or the Special Servicer pursuant to Section 6.02, 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
3.27, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to each
Serviced Non-Pooled Mortgage Loan Noteholder.
(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 actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66-2/3% of the Voting
Rights allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided that an Event of Default
under clause (i), clause (ii), clause (iii), clause (xi) or clause (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, and payment to
the Trustee and the Certificate Administrator of all reasonable costs and
expenses incurred by the Trustee and the Certificate Administrator in connection
with such default prior to its waiver (which costs shall be paid by the party
requesting such waiver), 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 the same Voting
Rights with respect to the matters described above as they would if registered
in the name of any other Person.
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 (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust and (in the case of
any matter affecting the Serviced Mortgage Loan Group) on behalf of the related
Serviced Non-Pooled Mortgage Loan Noteholder(s), 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 and such noteholder(s) (including the institution and
prosecution of all judicial, administrative and other proceedings and the
filings of proofs of claim and debt in connection therewith). Except as
otherwise expressly provided in this Agreement, 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.
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ARTICLE VIII
THE TRUSTEE, THE CUSTODIAN, THE CERTIFICATE ADMINISTRATOR
AND THE TAX ADMINISTRATOR
SECTION 8.01. Duties of the Trustee, the Custodian, the Certificate
Administrator and the Tax Administrator.
(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 person would exercise or use under the circumstances in the conduct of
such person's own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty. The Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Trustee, the Custodian, the
Certificate Administrator and the Tax Administrator.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee, the Custodian, the Certificate Administrator or the Tax Administrator,
as applicable, 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), the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall examine them to determine whether they conform to the
requirements of this Agreement. If any such instrument is found not to conform
to the requirements of this Agreement in a material manner, the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator, as
applicable, shall take such action as it deems appropriate to have the
instrument corrected. The Trustee, the Custodian, the Certificate Administrator
or the Tax Administrator, as applicable, shall not be responsible or liable for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, a Master
Servicer, the Special Servicer, any actual or prospective Certificateholder or
Certificate Owner or any Rating Agency, and accepted by the Trustee, the
Custodian, the Certificate Administrator or the Tax Administrator in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee, the Tax Administrator or the Certificate Administrator from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all 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.
(ii) In the absence of bad faith on the part of the Trustee, the
Certificate Administrator or the Tax Administrator, the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, 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, the Certificate Administrator or the Tax Administrator, as
applicable, and conforming to the requirements of this Agreement.
(iii) None of the Trustee, the Certificate Administrator or the
Tax Administrator shall be liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of such entity unless
it shall be proved that such entity was negligent in ascertaining the
pertinent facts.
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(iv) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by the Trustee, in good faith in
accordance with the terms of this Agreement and the direction of Holders of
Certificates entitled to at least 25% (or, as to any particular matter, any
higher percentage as may be specifically provided for hereunder) 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.
(v) Neither the Certificate Administrator nor the Trustee shall be
required to take action with respect to, or be deemed to have notice or
knowledge of, any default or Event of Default (other than an Event of
Default under Section 7.01(a)(xi) or (xii)) or a Master Servicer's failure
to deliver any monies, including P&I Advances, or to provide any report,
certificate or statement, to the Trustee, the Certificate Administrator or
the Tax Administrator, as applicable, when required pursuant to this
Agreement) unless a Responsible Officer of the Trustee or the Certificate
Administrator shall have received written notice or otherwise have actual
knowledge thereof. Otherwise, the Trustee and the Certificate Administrator
may conclusively assume that there is no such default or Event of Default.
(vi) Subject to the other provisions of this Agreement, and
without limiting the generality of this Section 8.01, none of the Trustee,
the Certificate Administrator or the Tax Administrator shall have any duty,
except, in the case of the Trustee, as expressly provided in Section 2.01(c)
or Section 2.01(e) or in its capacity as successor to a Master Servicer or
the Special Servicer, (A) to cause any recording, filing, or depositing of
this Agreement or any agreement referred to herein or any financing
statement or continuation statement evidencing a security interest, or to
cause the maintenance of any such recording or filing or depositing or to
any re-recording, refiling or redepositing of any thereof, (B) to cause the
maintenance of any insurance, (C) to confirm or verify the truth, accuracy
or contents of any reports or certificates of either Master Servicer, the
Special Servicer, any actual or prospective or any Certificateholder or
Certificate Owner or any Rating Agency, delivered to the Trustee, the
Certificate Administrator or the Tax Administrator pursuant to this
Agreement reasonably believed by the Trustee, the Certificate Administrator
or the Tax Administrator, as applicable, to be genuine and without error and
to have been signed or presented by the proper party or parties, (D) subject
to Section 10.01(f), to see to the payment or discharge of any tax levied
against any part of the Trust Fund other than from funds available in the
Collection Accounts or the Distribution Account, and (E) to see to the
payment of any assessment or other governmental charge or any lien or
encumbrance of any kind owing with respect to, assessed or levied against,
any part of the Trust Fund other than from funds available in a Collection
Account or the Distribution Account (provided that such assessment, charge,
lien or encumbrance did not arise out of the Trustee's, the Certificate
Administrator's or the Tax Administrator's, as applicable, willful
misfeasance, bad faith or negligence).
(vii) For as long as the Person that serves as the Trustee, the
Certificate Administrator or the Tax Administrator hereunder also serves as
Custodian and/or Certificate Registrar, the protections, immunities and
indemnities afforded to that Person in its capacity as Trustee, Certificate
Administrator or Tax Administrator, as applicable, hereunder shall also be
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
(viii) If the same Person is acting in two or more of the
capacities of Trustee, Certificate Administrator, Tax Administrator,
Custodian or Certificate Registrar, then any notices required to be given by
such Person in one such capacity shall be deemed to have been timely given
to itself in any other such capacity.
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate
Administrator and the Tax Administrator.
Except as otherwise provided in Section 8.01:
(i) the Trustee, the Certificate Administrator and the Tax
Administrator, may each rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of
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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 without error and to have been
signed or presented by the proper party or parties;
(ii) the Trustee, the Certificate Administrator and the Tax
Administrator may each consult with counsel and any written advice or
opinion of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) 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 to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, unless such
Certificateholders shall have provided to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby satisfactory to the Trustee, in its reasonable
discretion; none of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator shall be required to expend or risk
its own funds (except to pay expenses that could reasonably be expected to
be incurred in connection with the performance of its normal duties) 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 waived or cured, to exercise such of the rights and powers
vested in it by this Agreement, and to use the same degree of care and skill
in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) none of the Trustee, the Fiscal Agent appointed thereby, the
Certificate Administrator or the Tax Administrator shall 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;
(v) prior to the occurrence of an Event of Default and after the
waiver or 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 an indemnity satisfactory to the Trustee,
in its reasonable discretion, against such expense or liability as a
condition to taking any such action;
(vi) except as contemplated by Section 8.06 and, with respect to
the Trustee alone, Section 8.14, none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to give any bond or
surety in respect of the execution of the trusts created hereby or the
powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested
in it by this Agreement, and the Certificate Administrator and the Tax
Administrator may each perform any of their respective duties hereunder,
either directly or by or through the Custodian or other agents or
attorneys-in-fact, provided that the use of the Custodian or other agents or
attorneys-in-fact shall not be deemed to relieve the Trustee, the
Certificate Administrator or the Tax Administrator, as applicable, of any of
its duties and obligations hereunder (except as expressly set forth herein);
(viii) none of the Trustee, the Fiscal Agent appointed thereby,
the Certificate Administrator or the Tax Administrator shall be responsible
for any act or omission of a Master Servicer or the Special Servicer
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(unless, in the case of the Trustee, it is acting as a Master Servicer or
the Special Servicer, as the case may be) or of the Depositor; and
(ix) 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 or record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement; and the Trustee and the 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 or record ownership in the
Certificate Register.
SECTION 8.03. The Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator 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, and the representations and warranties of, the
Trustee, the Fiscal Agent, the Certificate Administrator and/or the Tax
Administrator in Article II, and the signature of the Certificate Registrar set
forth on each outstanding Certificate) shall not be taken as the statements of
the Trustee, the Fiscal Agent, the Certificate Administrator or the Tax
Administrator, and none of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator assumes any responsibility for their
correctness. None of the Trustee, the Fiscal Agent, the Certificate
Administrator or the Tax Administrator makes any representation as to the
validity or sufficiency of this Agreement (except as regards the enforceability
of this Agreement against it) or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. None of the Trustee, the Fiscal Agent, the Certificate Administrator
or the Tax Administrator shall be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the use or application of any funds paid to the Depositor
in respect of the assignment of the Pooled Mortgage Loans to the Trust, or any
funds (other than with respect to any funds held by the Certificate
Administrator) deposited in or withdrawn from the Collection Account or any
other account by or on behalf of the Depositor, a Master Servicer or the Special
Servicer (unless, in the case of the Trustee, it is acting in such capacity).
None of the Trustee, the Fiscal Agent, the Certificate Administrator or the Tax
Administrator shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee,
the Fiscal Agent, the Certificate Administrator or the Tax Administrator, as the
case may be, hereunder) or the validity, priority, perfection or sufficiency of
any security, lien or security interest granted to it hereunder or the filing of
any financing statements or continuation statements, except to the extent set
forth in Section 2.01(c) and Section 2.01(e) or to the extent the Trustee is
acting as a Master Servicer or the Special Servicer and such Master Servicer or
the Special Servicer, as the case may be, would be so responsible hereunder.
Except as contemplated by Section 11.02(a), none of the Trustee, the Certificate
Administrator or the Tax Administrator shall be required to record this
Agreement.
SECTION 8.04. The Trustee, the Fiscal Agent, the Certificate
Administrator and the Tax Administrator May Own
Certificates.
The Trustee (in its individual or any other capacity), the Fiscal
Agent, the Certificate Administrator or the Tax Administrator or any of their
respective Affiliates may become the owner or pledgee of Certificates with
(except as otherwise provided in the definition of "Certificateholder") the same
rights it would have if it were not the Trustee, such Fiscal Agent, the
Certificate Administrator or the Tax Administrator or one of their Affiliates,
as the case may be.
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SECTION 8.05. Fees and Expenses of the Trustee, the Certificate
Administrator and the Tax Administrator; Indemnification
of and by the Trustee, the Certificate Administrator, the
Tax Administrator and the Fiscal Agent.
(a) On each Distribution Date, the Certificate Administrator shall
withdraw from the Distribution Account, out of general collections on the Pooled
Mortgage Loans and REO Properties on deposit therein, prior to any distributions
to be made therefrom to Certificateholders on such date, and pay to the Trustee
all Trustee Fees and to the Servicer Report Administrator all Servicer Report
Administrator Fees, in each case earned in respect of the Pooled Mortgage Loans
and any successor REO Pooled Mortgage Loans through the end of the then most
recently ended calendar month as compensation for all services rendered by the
Trustee and the Servicer Report Administrator, respectively, hereunder. As to
each Pooled Mortgage Loan and REO Pooled Mortgage Loan, the Trustee Fee and the
Servicer Report Administrator Fee shall accrue during each calendar month,
commencing with December 2004, at the Trustee Fee Rate and the Servicer Report
Administrator Fee Rate, respectively, on a principal amount equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may
be, immediately following the Distribution Date in such calendar month (or, in
the case of December 2004, on a principal amount equal to the Cut-off Date
Principal Balance of the particular Mortgage Loan). The Trustee Fee and the
Servicer Report Administrator Fee accrued during each calendar month shall be
payable in the next succeeding calendar month. With respect to each Pooled
Mortgage Loan and REO Pooled Mortgage Loan, the Trustee Fee and the Servicer
Report Administrator Fee shall be calculated on the same Interest Accrual Basis
as is applicable to the accrual or deemed accrual of interest on such Mortgage
Loan or REO Mortgage Loan, as the case may be. 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), the Certificate Administrator Fee and the Tax Administrator
Fee shall constitute the sole compensation of the Trustee, the Certificate
Administrator and the Tax Administrator, respectively, for such services to be
rendered by it. The Trustee shall be responsible for the payment of the
Certificate Administrator Fee and the Tax Administrator Fee.
Notwithstanding the prior paragraph, if and to the extent that any
loss, liability, cost or expense that is, pursuant to the prior paragraph,
required to be borne by the Trust out of the Distribution Account or a
Collection Account, relates to any Mortgage Loan that is part of the Serviced
Mortgage Loan Group, if such Serviced Mortgage Loan Group includes one or more
Serviced Non-Pooled Pari Passu Companion Loans, such loss, liability, cost or
expense shall be payable out of amounts on deposit in the relevant Collection
Account and the related Companion Note Custodial Account(s) (withdrawals from
those accounts to be made in accordance with the related Mortgage Loan Group
Intercreditor Agreement and pro rata according to the respective outstanding
principal balances of the Pooled Mortgage Loan and such Serviced Non-Pooled Pari
Passu Companion Loan included in such Serviced Mortgage Loan Group), prior to
payment from funds in the Distribution Account or a Collection Account that are
unrelated to such Serviced Mortgage Loan Group.
(b) The Trustee, the Certificate Administrator, the Fiscal Agent and
the Tax Administrator and any of their respective directors, officers,
employees, agents or affiliates are entitled to be indemnified and held harmless
out of the Collection Accounts and/or the Distribution Account, as and to the
extent provided in Section 3.05, for and against any loss, liability, claim or
expense (including costs and expenses of litigation, and of investigation,
reasonable counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with, this Agreement, the
Certificates, the Mortgage Loans (unless, in the case of the Trustee, it incurs
any such expense or liability in the capacity of successor to a Master Servicer
or the Special Servicer (as the case may be), in which case such expense or
liability will be reimbursable thereto in the same manner as it would be for any
other Master Servicer or Special Servicer, as the case may be) or any act or
omission of the Trustee, the Certificate Administrator or the Tax Administrator
relating to the exercise and performance of any of the rights and duties of the
Trustee, the Certificate Administrator or the Tax Administrator hereunder;
provided, however, that none of the Trustee, the Certificate Administrator or
the Tax Administrator shall be entitled to indemnification pursuant to this
Section 8.05(b) for (1) allocable overhead, such as costs for office space,
office equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses, (2) any cost or expense that
does not constitute an "unanticipated expense" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii), (3) any expense or liability
specifically required to be borne
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thereby pursuant to the terms hereof or (4) any loss, liability, claim or
expense incurred by reason of any breach on the part of the Trustee, the Fiscal
Agent, the Certificate Administrator or the Tax Administrator of any of their
respective representations, warranties or covenants contained herein or any
willful misconduct, bad faith, fraud or negligence in the performance of, or
negligent disregard of, the Trustee's, the Fiscal Agent's, the Certificate
Administrator's or the Tax Administrator's obligations and duties hereunder.
(c) The Master Servicers and the Special Servicer each shall indemnify
the Trustee, the Certificate Administrator, the Tax Administrator and the Fiscal
Agent for and hold each of them harmless against any loss, liability, claim or
expense that is a result of such Master Servicer's or the Special Servicer's, as
the case may be, negligent acts or omissions in connection with this Agreement,
including the negligent use by such Master Servicer or the Special Servicer, as
the case may be, of any powers of attorney delivered to it by the Trustee
pursuant to the provisions hereof and the Mortgage Loans serviced by such Master
Servicer or the Special Servicer, as the case may be; provided, however, that,
if the Trustee, the Certificate Administrator or the Tax Administrator has been
reimbursed for such loss, liability, claim or expense pursuant to Section
8.05(b), or the Fiscal Agent has been reimbursed for such loss, liability, claim
or expense pursuant to Section 8.13, then the indemnity in favor of such Person
provided for in this Section 8.05(c) with respect to such loss, liability, claim
or expense shall be for the benefit of the Trust.
(d) Each of the Trustee, the Certificate Administrator, the Tax
Administrator and the Fiscal Agent shall indemnify each of the Master Servicers
and the Special Servicer for and hold each of them harmless against any loss,
liability, claim or expense that is a result of the Trustee's, the Certificate
Administrator's, the Tax Administrator's or such Fiscal Agent's, as the case may
be, negligent acts or omissions in connection with this Agreement; provided,
however, that if a Master Servicer or the Special Servicer has been reimbursed
for such loss, liability, claim or expense pursuant to Section 6.03, then the
indemnity in favor of such Person otherwise provided for in this Section 8.05(d)
with respect to such loss, liability, claim or expense shall be for the benefit
of the Trust.
(e) This Section 8.05 shall survive the termination of this Agreement
or the resignation or removal of the Trustee, the Certificate Administrator, the
Tax Administrator, the Fiscal Agent, either Master Servicer or the Special
Servicer as regards rights and obligations prior to such termination,
resignation or removal.
SECTION 8.06. Eligibility Requirements for the Trustee, the Certificate
Administrator and the Tax Administrator.
The Trustee, the Certificate Administrator and the Tax Administrator
hereunder each shall at all times be a corporation, bank, trust company or
association that: (i) is organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia and,
in the case of the Trustee, authorized under such laws to exercise trust powers;
(ii) has a combined capital and surplus of at least $50,000,000; and (iii) is
subject to supervision or examination by federal or state authority. If such
corporation, bank, trust company or association publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation, bank, trust company or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In addition: (i) the
Trustee shall at all times meet the requirements of Section 26(a)(1) of the
Investment Company Act; and (ii) neither the Certificate Administrator nor the
Tax Administrator may have any affiliations or act in any other capacity with
respect to the transactions contemplated hereby that would cause the Underwriter
Exemption to be unavailable with respect to any Class of Certificates as to
which it would otherwise be available. Furthermore, the Trustee, the Certificate
Administrator and the Tax Administrator shall at all times maintain a long-term
unsecured debt rating of at least "Aa3" from Xxxxx'x and "A+" from S&P and a
short-term unsecured debt rating of at least "P-2" from Xxxxx'x and "A-1" from
S&P (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 Rated Certificates rated
by such Rating Agency and (if the 11 Penn Plaza Loan Group is then serviced and
administered under this Agreement) also will not result in Adverse Rating Event
with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities rated by such Rating Agency (if such Rating Agency is an applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities), in each case as confirmed in writing to the Trustee, the
Certificate Administrator, the Tax Administrator and the Depositor
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by such Rating Agency); provided that the Trustee shall not cease to be eligible
to serve as such based on a failure to satisfy such rating requirements so long
as either: (i) the Trustee maintains a long-term unsecured debt rating of no
less than "Baa2" from Xxxxx'x and "BBB" from S&P (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 Rated Certificates rated by such Rating Agency and (if
the 11 Penn Plaza Loan Group is then serviced and administered under this
Agreement) also will not result in Adverse Rating Event with respect to any
class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated by
such Rating Agency (if such Rating Agency is an applicable Rating Agency for the
11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities), in each case as
confirmed in writing to the Trustee and the Depositor by such Rating Agency),
and a Fiscal Agent meeting the requirements of Section 8.13 has been appointed
by the Trustee and is then currently serving in such capacity; or (ii) the
Trustee maintains a long-term unsecured debt rating of no less than "A1" from
Xxxxx'x and "A" from S&P (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 Rated Certificates rated by such Rating Agency and (if the 11 Penn Plaza Loan
Group is then serviced and administered under this Agreement) also will not
result in Adverse Rating Event with respect to any class of 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities rated by such Rating Agency (if
such Rating Agency is an applicable Rating Agency for the 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities), in each case as confirmed in
writing to the Trustee and the Depositor by such Rating Agency) and an Advance
Security Arrangement meeting the requirements of Section 8.14 has been
established by the Trustee and is then currently being maintained. In case at
any time the Trustee, the Certificate Administrator or the Tax Administrator
shall cease to be eligible in accordance with the provisions of this Section
8.06, the Trustee, the Certificate Administrator or the Tax Administrator, as
applicable, shall resign immediately in the manner and with the effect specified
in Section 8.07. The corporation, bank, trust company or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Pooled Mortgage Loan Sellers, the Master Servicers, the Special Servicer and
their respective Affiliates; provided, however, that none of (i) the Depositor,
(ii) any Person involved in the organization or operation of the Depositor or
the Trust, (iii) a Master Servicer or the Special Servicer (except during any
period when the Trustee has assumed the duties of such Master Servicer or
Special Servicer (as the case may be) pursuant to Section 7.02, (iv) any Pooled
Mortgage Loan Seller or (v) any Affiliate of any of them, may be the Trustee
hereunder.
SECTION 8.07. Resignation and Removal of the Trustee, the Certificate
Administrator and the Tax Administrator.
(a) The Trustee, the Certificate Administrator and the Tax
Administrator each may at any time resign and be discharged from their
respective obligations created hereunder by giving written notice thereof to the
other such parties, the Depositor, the Master Servicers, the Special Servicer,
the Rating Agencies and all the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee,
certificate administrator or tax administrator, as the case may be, meeting the
eligibility requirements of Section 8.06 by written instrument, in duplicate,
which instrument shall be delivered to the resigning Trustee, Certificate
Administrator or Tax Administrator, as the case may be, and to the successor
trustee, certificate administrator or tax administrator, as the case may be. A
copy of such instrument shall be delivered to other parties hereto and to the
Certificateholders by the Depositor. If no successor trustee, certificate
administrator or tax administrator, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, Certificate Administrator or Tax
Administrator, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, certificate
administrator or tax administrator, as the case may be.
(b) If at any time the Trustee, the Certificate Administrator or the
Tax Administrator 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 a Master Servicer, or if at any time the Trustee, the Certificate
Administrator or the Tax Administrator shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the Trustee, the
Certificate Administrator or the Tax Administrator or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee,
the Certificate Administrator or the Tax Administrator or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or if
the Trustee's, Certificate Administrator's or Tax Administrator's continuing to
act in such capacity would result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by a Rating Agency for the Rated Certificates
or (if the 11 Penn Plaza Loan Group is then serviced and administered
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under this Agreement) would result in an Adverse Rating Event with respect to
any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities rated
by an applicable Rating Agency that is also a Rating Agency for the Rated
Certificates, in each case as confirmed in writing to the Depositor by such
Rating Agency, then the Depositor may (and, if it fails to do so within 10
Business Days, PAR or any successor thereto as Master Servicer shall as soon as
practicable) remove the Trustee, the Certificate Administrator or the Tax
Administrator, as the case may be, and appoint a successor trustee, certificate
administrator or tax administrator, as the case may be, by written instrument,
in duplicate, which instrument shall be delivered to the Trustee, the
Certificate Administrator or the Tax Administrator, as the case may be, so
removed and to the successor trustee, certificate administrator or tax
administrator, as the case may be. A copy of such instrument shall be delivered
to the other parties hereto and to the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to more than 50% of the Voting
Rights may at any time remove the Trustee, Certificate Administrator or Tax
Administrator and appoint a successor trustee, certificate administrator or tax
administrator, as the case may be, by written instrument or instruments signed
by such Holders or their attorneys-in-fact duly authorized, one complete set of
which instruments shall be delivered to the Depositor, one complete set to the
Trustee, Certificate Administrator or Tax Administrator, as the case may be, so
removed, and one complete set to the successor so appointed. All expenses
incurred by the Trustee in connection with its transfer of the Mortgages Files
to a successor trustee following the removal of the Trustee without cause
pursuant to this Section 8.07(c), shall be reimbursed to the removed Trustee
within 30 days of demand therefor, such reimbursement to be made by the
Certificateholders that terminated the Trustee. A copy of such instrument shall
be delivered to the other parties hereto and to the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee, the Certificate
Administrator or the Tax Administrator and appointment of a successor trustee,
certificate administrator or tax administrator, as the case may be, pursuant to
any of the provisions of this Section 8.07 shall not become effective until (i)
acceptance of appointment by the successor trustee, certificate administrator or
tax administrator, as the case may be, as provided in Section 8.08 and (ii) if
the successor trustee, certificate administrator or tax administrator, as the
case may be, does not have a long-term unsecured debt rating of at least "Aa3"
from Xxxxx'x and "A+" from S&P and a short-term unsecured debt rating of at
least "P-2" from Xxxxx'x and "A-1" from S&P, the Trustee and the Depositor have
received written confirmation from each Rating Agency for the Rated Certificates
that has not so assigned such a rating, to the effect that the appointment of
such successor trustee, certificate administrator or tax administrator, as the
case may be, shall not result in an Adverse Rating Event with respect to any
Class of Rated Certificates rated by such Rating Agency and (if the 11 Penn
Plaza Loan Group is then serviced and administered under this Agreement) also
shall not result in an Adverse Rating Event with respect to any class of 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities rated by such Rating
Agency (if such Rating Agency is an applicable Rating Agency for the 11 Penn
Plaza Non-Pooled Pari Passu Companion Loan Securities).
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax
Administrator.
(a) Any successor trustee, certificate administrator or tax
administrator appointed as provided in Section 8.07 shall execute, acknowledge
and deliver to the Depositor, each Master Servicer, the Special Servicer and its
predecessor trustee, certificate administrator or tax administrator, as the case
may be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee, certificate administrator or
tax administrator, as the case may be, shall become effective and such successor
trustee, certificate administrator or tax administrator, as the case may be,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as trustee, certificate administrator or
tax administrator herein. If the Trustee is being replaced, the predecessor
trustee shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files at
the time held on its behalf by a Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, each 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.
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(b) No successor trustee, certificate administrator or tax
administrator shall accept appointment as provided in this Section 8.08 unless
at the time of such acceptance such successor trustee, certificate administrator
or tax administrator, as the case may be, shall be eligible under the provisions
of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee, certificate
administrator or tax administrator as provided in this Section 8.08, such
successor trustee, certificate administrator or tax administrator, as the case
may be, shall mail notice of the succession of such trustee, certificate
administrator or tax administrator hereunder to the Depositor, the
Certificateholders and the other parties hereto.
SECTION 8.09. Merger or Consolidation of the Trustee, the Certificate
Administrator or the Tax Administrator.
Any entity into which the Trustee, Certificate Administrator or Tax
Administrator 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, Certificate Administrator or Tax Administrator shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, Certificate
Administrator or Tax Administrator, shall be the successor of the Trustee,
Certificate Administrator or Tax Administrator, as the case may be, hereunder,
provided such entity shall be eligible under the provisions of Section 8.06,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
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
applicable 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
applicable Master Servicer and the Trustee may consider necessary or desirable.
If the applicable 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 applicable 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, 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.
(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
when acting as a Master Servicer, Special Servicer, Certificate Administrator or
Tax Administrator 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 die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, at its own expense, appoint any Person with
appropriate experience as a document custodian to act as Custodian hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Custodian, the Trustee agrees to act in such capacity in
accordance with the terms hereof. The appointment of a Custodian shall not
relieve the Trustee from such entity's obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of the Custodian. The
Custodian shall be subject to the same standards of care, limitations on
liability and rights to indemnity as the Trustee, and the provisions of Sections
8.01, 8.02, 8.03, 8.04, 8.05(b), 8.05(c), 8.05(d) and 8.05(e) shall apply to the
Custodian to the same extent that they apply to the Trustee. Any Custodian
appointed in accordance with this Section 8.11 may at any time resign by giving
at least 30 days' advance written notice of resignation to the Certificate
Administrator, the Trustee, each Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Custodian
appointed in accordance with this Section 8.11 by giving written notice of
termination to such Custodian, with a copy to the Certificate Administrator,
each Master Servicer, the Special Servicer and the Depositor. Each Custodian
shall comply with the requirements for Trustees set forth in Section 8.06, shall
not be the Depositor, any Pooled Mortgage Loan Seller or any Affiliate of the
Depositor or any Pooled Mortgage Loan Seller, and shall have in place a fidelity
bond and errors and omissions policy, each in such form and amount as is
customarily required of custodians acting on behalf of Xxxxxxx Mac or Xxxxxx
Mae.
SECTION 8.12. Access to Certain Information.
(a) The Trustee and the Custodian shall each afford to the Depositor,
the Underwriters, each Master Servicer, the Special Servicer, the Controlling
Class Representative and each Rating Agency and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder or Certificate Owner, access to any documentation
regarding the Pooled Mortgage Loans or the other assets of the Trust Fund that
are in its possession or within its control. 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 or the Custodian, as the case may
be, designated by it.
(b) The Trustee (or, in the case of the items referenced in clause (ix)
below, the Custodian, or in the case of the items referenced in clauses (i),
(ii), (iii) and (viii), the Certificate Administrator, or in the case of the
items referenced in clause (xii), both the Certificate Administrator and the
Trustee) shall maintain at its offices or the offices of a Custodian and, upon
reasonable prior written request and during normal business hours, shall make
available, or cause to be made available, for review by the Depositor, the
Rating Agencies, the Certificate Administrator, the Custodian, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee (or, in
the case of the items referenced in clause (ix) below, the Custodian, or in the
case of the items referenced in clauses (i), (ii), (iii) and (viii), the
Certificate Administrator, or in the case of the items referenced in clause
(xi), both the Certificate Administrator and the Trustee) as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items (to the extent such items were prepared by or delivered to
the Trustee (or, in the case of the items referenced in clause (ix) below, the
Custodian, or in the case of the items referenced in clauses (i), (ii), (iii)
and (viii), the Certificate Administrator, or in the case of the items
referenced in clause (xi), both the Certificate Administrator and the Trustee):
(i) the Prospectus, the Private Placement Memorandum and any other disclosure
document relating to the Certificates, in the form most recently provided to the
Certificate Administrator by the Depositor or by any Person designated by the
Depositor; (ii) this Agreement, each Sub-Servicing Agreement
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delivered to the Certificate Administrator since the Closing Date, each Mortgage
Loan Purchase Agreement, each Non-Trust Servicing Agreement and any amendments
and exhibits hereto or thereto; (iii) all Certificate Administrator Reports and
any files and reports comprising the CMSA Investor Reporting Package actually
delivered or otherwise made available to Certificateholders pursuant to Section
4.02(a) since the Closing Date; (iv) all Annual Performance Certifications
delivered by the Master Servicers and/or the Special Servicer to the Certificate
Administrator and the Trustee since the Closing Date and all comparable
certifications delivered to the Trustee with respect to comparable servicing
parties under the Non-Trust Servicing Agreements since the Closing Date; (v) all
Annual Accountants' Reports caused to be delivered by the Master Servicers
and/or the Special Servicer, respectively, to the Certificate Administrator and
the Trustee since the Closing Date and all comparable accountant's reports
delivered to the Trustee with respect to comparable servicing parties under the
Non-Trust Servicing Agreements since the Closing Date; (vi) the most recent
inspection report prepared by a Master Servicer or the Special Servicer and
delivered to the Trustee in respect of each Mortgaged Property pursuant to
Section 3.12(a) (or, in the case of the Mortgaged Property securing the
Non-Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing
party under the Non-Trust Servicing Agreement and delivered to the Trustee since
the Closing Date); (vii) any and all notices and reports delivered to the
Trustee with respect to any Mortgaged Property as to which the environmental
testing contemplated by Section 3.09(c) revealed that neither of the conditions
set forth in clauses (i) and (ii) of the first sentence thereof was satisfied;
(viii) all files and reports comprising the CMSA Investor Reporting Package
delivered to the Certificate Administrator since the Closing Date pursuant to
Section 4.02(b); (ix) each of the Mortgage Files, including any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into or consented to by a Master Servicer or the Special Servicer and delivered
to the Trustee or any Custodian pursuant to Section 3.20; (x) any and all
Officer's Certificates and other evidence delivered to or by the Trustee to
support its, a Master Servicer's, the Special Servicer's or the Fiscal Agent's,
as the case may be, determination that any Advance was (or, if made, would be) a
Nonrecoverable Advance; (xi) to the extent not otherwise described in any of the
foregoing clauses (i) through (x), any and all reports, statements and other
written or electronic information relating to the Non-Trust-Serviced Pooled
Mortgage Loan, the related Mortgaged Property and/or the related Borrower, to
the extent such items were received by the applicable Master Servicer under this
Agreement or by any party to the Non-Trust Servicing Agreement and (in either
case) delivered to the Trustee since the Closing Date; and (xii) any other
information that may be necessary to satisfy the requirements of subsection
(d)(4)(i) of Rule 144A under the Securities Act. The Certificate Administrator,
the Trustee or the Custodian, as applicable, shall provide, or cause to be
provided, copies of any and all of the foregoing items upon request of any of
the parties set forth in the previous sentence; however, except in the case of
the Rating Agencies and the Controlling Class Representative, the Certificate
Administrator or the Custodian shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
In connection with providing, or causing to be provided, access to or
copies of the items described in the preceding paragraph pursuant to this
Section 8.12(b), the Certificate Administrator, the Trustee or the Custodian, as
the case may be, shall require: (a) in the case of Certificateholders and
Certificate Owners, a written confirmation executed by the requesting Person
substantially in the form of Exhibit K-1 hereto (or such other form as may be
reasonably acceptable to the Certificate Administrator, the Trustee or the
Custodian, as the case may be) generally to the effect that such Person is a
Holder or Certificate Owner of Certificates and, subject to the last sentence of
this paragraph, will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to its
auditors, legal counsel and regulators and 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 K-2 hereto (or such other form as may be reasonably acceptable to the
Certificate Administrator, the Trustee or the Custodian, as the case may be)
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.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner need keep confidential any
information received from the Certificate Administrator, the Trustee or the
Custodian, as the case may be, pursuant to this Section 8.12(b) that has
previously been filed with the Commission, and the Certificate Administrator,
the Trustee or the
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Custodian, as the case may be, shall not require either of the certifications
contemplated by the preceding sentence in connection with providing any
information pursuant to this Section 8.12(b) that has previously been filed with
the Commission.
(c) None of the Trustee, the Custodian or the Certificate Administrator
shall be liable for providing or disseminating information in accordance with
the terms of this Agreement.
SECTION 8.13. Appointment of Fiscal Agent.
(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. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of at least "Aa3" from Xxxxx'x
and "A+" from S&P and a short-term unsecured debt rating of at least "P-2" from
Xxxxx'x and "A-1" from S&P (or, in the case of any Rating Agency, such lower
rating(s) as will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, as confirmed in writing to the Trustee and the
Depositor by such Rating Agency). Any Person so appointed by the Trustee
pursuant to this Section 8.13(a) subsequent to the Closing Date shall become the
Fiscal Agent on the date as of which the Trustee and the Depositor have
received: (i) if the long-term unsecured debt of the designated Person is not
rated at least "Aa3" from Xxxxx'x and "AA-" from S&P, written confirmation from
each Rating Agency that the appointment of such designated Person will not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates and any class of 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities; (ii) a written agreement whereby the designated Person is appointed
as, and agrees to assume and perform the duties of, Fiscal Agent hereunder,
executed by such designated Person and the Trustee (such agreement, the "Fiscal
Agent Agreement"); and (iii) an Opinion of Counsel (which shall be paid for by
the designated Person or the Trustee) substantially to the effect that (A) the
appointment of the designated Person to serve as Fiscal Agent is in compliance
with this Section 8.13, (B) the designated Person is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (C) the related Fiscal Agent Agreement has been duly authorized,
executed and delivered by the designated Person and (D) upon execution and
delivery of the related Fiscal Agent Agreement, the designated Person shall be
bound by the terms of this Agreement and, subject to customary bankruptcy and
insolvency exceptions and customary equity exceptions, that this Agreement shall
be enforceable against the designated Person in accordance with its terms. Any
Fiscal Agent appointed pursuant to this Section 8.13(a) shall, for so long as it
so acts, be deemed a party to this Agreement for all purposes hereof. Pursuant
to the related Fiscal Agent Agreement, each Fiscal Agent, if any, appointed
pursuant to this Section 8.13(a) shall make representations and warranties with
respect to itself that are comparable to those made by the initial Fiscal Agent
pursuant to Section 2.11. Notwithstanding anything contained in this Agreement
to the contrary, any Fiscal Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities to which the initial Fiscal
Agent is entitled hereunder.
(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 (if any) shall make such Advance when and as required by the terms
of this Agreement on behalf the Trustee as if such Fiscal Agent were the Trustee
hereunder. To the extent that the Fiscal Agent (if any) makes an Advance
pursuant to this Section 8.13 or otherwise pursuant to this Agreement, the
obligations of the Trustee under this Agreement in respect of such Advance shall
be satisfied.
(c) All fees and expenses of any Fiscal Agent (other than interest owed
to such Fiscal Agent in respect of unreimbursed Advances) incurred by such
Fiscal Agent in connection with the transactions contemplated by this Agreement
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, a Master Servicer or the Special Servicer.
(d) The obligations of any Fiscal Agent set forth in this Section 8.13
or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it (or, in the case of ABN AMRO, as LaSalle) shall act as
Trustee hereunder. Any Fiscal Agent may resign or be removed by the Trustee only
if and when the existence of such Fiscal Agent is no longer necessary for such
Trustee to satisfy the eligibility requirements of Section 8.06; provided
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that any Fiscal Agent shall be deemed to have resigned at such time as the
Trustee that appointed it (or, in the case of ABN AMRO, as LaSalle) resigns or
is removed as Trustee hereunder (in which case the responsibility for appointing
a successor Fiscal Agent in accordance with this Section 8.13(a) 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 any
Fiscal Agent.
SECTION 8.14. Advance Security Arrangement.
Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may, at is own expense with the
approval of the Depositor, arrange for the pledging of collateral, the
establishment of a reserve fund or the delivery of a letter of credit, surety
bond or other comparable instrument or for any other security or financial
arrangement (any or all of the foregoing, individually and collectively, an
"Advance Security Arrangement") for purposes of supporting its back-up advancing
obligations hereunder; provided that any Advance Security Arrangement shall be
in such form and amount, and shall be maintained in such manner, as (i) would
permit the Trustee to act in such capacity without an Adverse Rating Event in
respect of any Class of Rated Certificates (as confirmed in writing to the
Trustee and the Depositor by each Rating Agency) and (ii) would not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event (as evidenced by an
Opinion of Counsel addressed and delivered to the Trustee, the Depositor and the
Tax Administrator). The Trustee may terminate any Advance Security Arrangement
established by it only if and when (i) the existence of such Advance Security
Arrangement is no longer necessary for the Trustee to satisfy the eligibility
requirements of Section 8.06 or (ii) when such Trustee resigns or is removed as
Trustee hereunder.
SECTION 8.15. Exchange Act Reporting.
(a) The Master Servicers, the Special Servicer, the Certificate
Administrator, the Trustee and the Fiscal Agent shall reasonably cooperate with
the Depositor in connection with the Trust's satisfaction of its reporting
requirements under the Exchange Act. Within 15 days after each Distribution
Date, the Certificate Administrator shall prepare, execute and file on behalf of
the Trust any Forms 8-K customary for similar securities as required by the
Exchange Act and the rules and regulations of the Commission thereunder;
provided that the Depositor shall file the initial Form 8-K in connection with
the issuance of the Certificates. The Certificate Administrator shall file each
Form 8-K with a copy of the related Certificate Administrator Report attached
thereto. If the Depositor directs that any other attachments are to be filed
with any Form 8-K, such attachments shall be delivered to the Certificate
Administrator in Xxxxx-compatible form or as otherwise agreed upon by the
Certificate Administrator and the Depositor, at the Depositor's expense, and any
necessary conversion to XXXXX-compatible format will be at the Depositor's
expense. Prior to March 30th of each year (or such earlier date as may be
required by the Exchange Act and the rules and regulations of the Commission),
the Certificate Administrator shall prepare and file an Annual Report on Form
10-K (a "Form 10-K"), in substance as required by applicable law and applicable
interpretations thereof of the staff of the Commission. Such Form 10-K shall
include as exhibits each annual statement of compliance described under Section
3.13 and each accountant's report described under Section 3.14, in each case to
the extent they have been timely delivered to the Certificate Administrator. If
they are not so timely delivered, the Certificate Administrator shall file an
amended Form 10-K including such documents as exhibits reasonably promptly after
they are delivered to the Certificate Administrator. Each Form 10-K shall also
include any Xxxxxxxx-Xxxxx Certification required to be included therewith, as
described in paragraph (b) of this Section. The Certificate Administrator shall
have no liability with respect to any failure to properly prepare or file such
periodic reports resulting from the Certificate Administrator's inability or
failure to obtain any information not resulting from its own negligence, bad
faith or willful misconduct. Prior to January 30 of the first year in which the
Certificate Administrator is able to do so under applicable law, the Certificate
Administrator shall file a Form 15 relating to the automatic suspension of
reporting in respect of the Trust under the Exchange Act and shall provide the
Special Servicer and the Master Servicers with written notice of such filing.
(b) The Form 10-K shall include any certification (the "Xxxxxxxx-Xxxxx
Certification") required to be included therewith pursuant to the Xxxxxxxx-Xxxxx
Act of 2002, and the rules and regulations of the Commission
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promulgated thereunder (including any interpretations thereof by the
Commission's staff). Each Master Servicer, the Special Servicer and the
Certificate Administrator (each, a "Performing Party") shall provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a
certification (each, a "Performance Certification"), in form and substance
reasonably satisfactory to the Depositor and the Performing Party, upon which
the Certifying Person, the entity for which the Certifying Person acts as an
officer (if the Certifying Person is an individual), and such entity's officers,
directors and Affiliates (collectively with the Certifying Person,
"Certification Parties") can rely, relating to the accuracy and completeness of
the information and reports provided under this Agreement by such Performing
Party; provided, however, that the certification required from the Special
Servicer shall contain the following information:
(i) a statement acknowledging that the officer of the Special
Servicer signing such certification has reviewed the information provided by
it for inclusion in the Form 10-K to be covered by the subject
Xxxxxxxx-Xxxxx Certification;
(ii) a statement, based on the knowledge of the officer of the
Special Servicer that is signing such certification, that the information
provided by it to be covered by such Xxxxxxxx-Xxxxx Certification solely
relating to actions of the Special Servicer and/or payments and other
collections on the Specially Serviced Mortgage Loans and REO Properties,
taken as a whole, does not contain any untrue statement of material fact or
omit to state a material fact necessary to make the statements made, not
misleading as of the last day of the period covered by the subject Form
10-K;
(iii) a statement, based on the knowledge of the officer of the
Special Servicer that is signing such certification, that the information
provided by it and to be covered by such Xxxxxxxx-Xxxxx Certification
relating solely to actions of the Special Servicer and/or payments and other
collections on the Specially Serviced Mortgage Loans and REO Properties,
includes all information of such type available to the Special Servicer and
required to be included in the Certificate Administrator Reports for the
relevant period covered by the subject Form 10-K; and
(iv) a statement, based on the knowledge of the officer of the
Special Servicer that is signing such certification, that the Special
Servicer has disclosed all significant deficiencies relating to the Special
Servicer's compliance with the minimum servicing standards during the period
covered by the subject Form 10-K in the report provided by an independent
public accountant, after conducting a review in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure, as set
forth in this Agreement.
Notwithstanding the foregoing, nothing in this paragraph shall require
any Performing Party to (i) certify or verify the accurateness or completeness
of any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge or (iii)
with respect to completeness of information and reports, to certify anything
other than that all fields of information called for in written reports prepared
by such Performing Party have been completed except as they have been left blank
on their face.
In addition, if the Performing Party is a Master Servicer or the
Special Servicer, such Performing Party shall, upon request, execute a
reasonable reliance certificate acknowledging the Certification Party's right to
rely upon the Annual Compliance Certificate provided pursuant to Section 3.13,
and shall include a certification, based on the knowledge of the officer that is
signing such certification, that such Annual Compliance Certificate discloses
any significant deficiencies or defaults described to the certified public
accountants of such Performing Party to enable such accountants to render the
certificate provided for in Section 3.14.
In addition, in the event that the Serviced Non-Pooled Pari Passu
Companion Loan is deposited into a commercial mortgage securitization, on or
before March 20th of each year with respect to which a Form 10-K is filed by the
related trustee for such commercial mortgage securitization, the applicable
Master Servicer and the Special Servicer, shall, upon request, provide to the
Person who signs the Xxxxxxxx-Xxxxx Certification with respect to such
commercial mortgage securitization a certification in form and substance
reasonably satisfactory to the depositor of such commercial mortgage
securitization and the applicable Master Servicer or the Special Servicer, as
applicable, with respect to the
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Serviced Non-Pooled Pari Passu Companion Loan, on which such Person and such
Person's partner, representative, Affiliate, member, manager, director, officer,
employee or agent can rely.
(c) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses arising out of an actual breach of the applicable
Performing Party's obligations under subsection (b) of this Section or the
applicable Performing Party's negligence, bad faith or willful misconduct in
connection with such obligations.
(d) Nothing contained in this Section shall be construed to require any
party to this Agreement, or any of such party's officers, to execute any Form
10-K or any Xxxxxxxx-Xxxxx Certification. The failure of any party to this
Agreement, or any of such party's officers, to execute any Form 10-K or any
Xxxxxxxx-Xxxxx Certification shall not be regarded as a breach by such party of
any of its obligations under this Agreement. The Depositor, each Master
Servicer, the Special Servicer and the Certificate Administrator hereby agree to
negotiate in good faith with respect to compliance with any further guidance
from the Commission or its staff relating to the execution of any Form 10-K and
any Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such
matters, this Agreement shall be amended to reflect such agreement pursuant to
Section 11.01, which amendment shall not require any Opinions of Counsel,
Officer's Certificates, Rating Agency confirmations or the consent of any
Certificateholder, notwithstanding anything to the contrary contained in this
Agreement. In no event shall the Special Servicer be required to execute any
Form 10-K or any Xxxxxxxx-Xxxxx Certification.
(e) A copy of each Xxxxxxxx-Xxxxx Certification executed and delivered
hereunder shall be delivered to S&P by the Certificate Administrator (whether or
not it is the Certifying Person).
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled
Mortgage Loans.
(a) Subject to Section 9.02, the Trust and the respective obligations
and responsibilities under this Agreement of the parties hereto (other than the
obligations of the Certificate Administrator to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Certificate Administrator on behalf of the Trustee and required hereunder to be
so paid on the Distribution Date following the earlier to occur of: (i) the
purchase by any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, one or both of the Master Servicers or the
Special Servicer (whose respective rights to effect such a purchase shall be
subject to the priorities and conditions set forth in subsection (b)) of all
Pooled Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund at a price (the "Termination
Price") equal to (A) the aggregate Purchase Price of all the Pooled Mortgage
Loans remaining in the Trust Fund (exclusive of any REO Pooled Mortgage
Loan(s)), plus (B) the appraised value of each REO Property (or, in the case of
any REO Property related to any Mortgage Loan Group, the beneficial interest of
the Trust Fund in such REO Property), if any, included in the Trust Fund, such
appraisal for such REO Property to be conducted by a Qualified Appraiser
selected by the Special Servicer and approved by the Certificate Administrator
and the applicable Master Servicer, minus (C) if the purchaser is a Master
Servicer or the Special Servicer, the aggregate amount of unreimbursed Advances
made by such Person, together with any unpaid Advance Interest in respect of
such unreimbursed Advances and any unpaid servicing compensation payable to such
Person (which items shall be deemed to have been paid or reimbursed to such
Master Servicer or the Special Servicer, as the case may be, in connection with
such purchase); (ii) the exchange by the Sole Certificateholder(s) of all the
Certificates for all Pooled Mortgage Loans and each REO Property (or, in the
case of any REO Property related to any Mortgage Loan Group, the beneficial
interest of the Trust Fund in such REO Property) remaining in the Trust Fund;
and (iii) the final payment or other liquidation (or any advance with respect
thereto) of the last Pooled Mortgage Loan or REO Property remaining in the Trust
Fund; provided, however, that in no event shall the Trust continue beyond the
expiration of 21 years from the death of the last survivor of the descendants of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, PAR (or its successor) as a Master
Servicer, WFB (or its successor) as a Master Servicer or the Special Servicer,
in that order of preference, may at its option elect to purchase all the Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund as contemplated by clause (i) of
Section 9.01(a) by giving written notice to the other parties hereto (and, in
the case of an election by a Master Servicer or the Special Servicer, to the
Holders of the Controlling Class) no later than 60 days prior to the anticipated
date of purchase; provided, however, that:
(A) the aggregate Stated Principal Balance of the Mortgage Pool
at the time of such election is 1.0% or less of the Initial
Pool Balance;
(B) within 30 days after written notice of such election is so
given, no Person with a higher right of priority to make such
an election does so;
(C) if more than one Controlling Class Certificateholder or group
of Controlling Class Certificateholders desire to purchase
all of the Pooled Mortgage Loans and any REO Properties
remaining in the Trust Fund, preference shall be given to the
Controlling Class Certificateholder or group of Controlling
Class Certificateholders with the largest Percentage Interest
in the Controlling Class; and
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(D) if a Master Servicer makes such an election, then the other
Master Servicer will have the option, by giving written
notice to the other parties hereto and to the Holders of the
Controlling Class no later than 30 days prior to the
anticipated date of purchase, to purchase all of the Pooled
Mortgage Loans and related REO Properties (or, in the case of
any REO Property related to any Mortgage Loan Group, the
beneficial interest of the Trust Fund in such REO Property)
remaining in the Trust Fund for which it is the applicable
Master Servicer.
If the Trust is to be terminated in connection with the purchase of all
the Pooled Mortgage Loans and each REO Property (or, in the case of any REO
Property related to any Mortgage Loan Group, the beneficial interest of the
Trust Fund in such REO Property) remaining in the Trust Fund by any Controlling
Class Certificateholder(s), one or both of the Master Servicers or the Special
Servicer, such Person(s) shall: (i) deposit, or deliver to the Master Servicers
for deposit, in the respective Collection Accounts (after the Determination
Date, and prior to the Master Servicer Remittance Date, relating to the
anticipated Final Distribution Date) an amount in immediately available funds
equal to the Termination Price (the portion thereof allocable to all such Pooled
Mortgage Loans and related REO Properties, other than those for which a Master
Servicer exercises its option under clause (D) above, to be deposited in the
other Master Servicer's Collection Account and the portion thereof allocable to
those for which a Master Servicer exercises its option under clause (D) above to
be deposited in the such Master Servicer's Collection Account); and (ii) shall
reimburse all of the parties hereto (other than itself, if applicable) for all
reasonable out-of-pocket costs and expenses incurred by such parties in
connection with such purchase. On the Master Servicer Remittance Date for the
Final Distribution Date, each Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred by it to such account on such
Master Servicer Remittance Date from such Master Servicer's Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in such Collection Account that would otherwise be held for
future distribution. Upon confirmation that such deposits and reimbursements
have been made, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Pooled
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the purchasing party as shall be necessary to
effectuate transfer of the remaining Pooled Mortgage Loans and REO Properties to
the purchasing party (or its designee).
Following the date on which the aggregate Certificate Principal Balance
of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates is reduced to zero, the Sole Certificateholder(s) shall have the
right to exchange all of the Certificates for all of the Pooled Mortgage Loans
and each REO Property (or, in the case of any REO Property related to any
Mortgage Loan Group, the beneficial interest of the Trust Fund in such REO
Property) remaining in the Trust Fund as contemplated by clause (ii) of Section
9.01(a) by giving written notice to all the parties hereto no later than 60 days
prior to the anticipated date of exchange. In the event that the Sole
Certificateholder(s) elect(s) to exchange all of the Certificates for all of the
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, such Sole Certificateholder(s), not
later than the Business Day prior to the Distribution Date on which the final
distribution on the Certificates is to occur, shall deposit in each Collection
Account an amount in immediately available funds equal to all amounts then due
and owing to the Depositor, each Master Servicer, the Special Servicer, the
Certificate Administrator, the Tax Administrator, the Trustee and/or the Fiscal
Agent hereunder (and their respective agents) that may be withdrawn from such
Collection Account, pursuant to Section 3.05(a), or (without duplication between
the Collection Accounts) that may be withdrawn from the Distribution Account,
pursuant to Section 3.05(b), but only to the extent that such amounts are not
already on deposit in such Collection Account. In addition, each Master Servicer
shall transfer to the Distribution Account all amounts required to be
transferred by it to such account on such Master Servicer Remittance Date from
such Master Servicer's Collection Account pursuant to the first paragraph of
Section 3.04(b). Upon confirmation that such final deposits have been made and
following the surrender of all the Certificates on the Final Distribution Date,
the Trustee shall release or cause to be released to the Sole
Certificateholder(s) (or any designee thereof), the Mortgage Files for the
remaining Pooled Mortgage Loans and shall execute all assignments, endorsements
and other instruments furnished to it by the Sole Certificateholder(s) as shall
be necessary to effectuate transfer of the remaining Pooled Mortgage Loans and
REO Properties to the Sole Certificateholder(s) (or any designee thereof). For
Federal income tax purposes, such surrender and release shall be treated as a
purchase of such Mortgage Loans and REO
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Properties for an amount of cash equal to all amounts due in respect thereof
after the distribution of amounts remaining in the Distribution Account, and a
crediting of such amounts as a final distribution on all REMIC I Regular
Interests, REMIC II Regular Interests and REMIC III Certificates.
(c) Notice of any termination shall be given promptly by the
Certificate Administrator by letter to Certificateholders mailed (x) if such
notice is given in connection with the purchase of all the Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund by one or both of the Master
Servicers, the Special Servicer and/or any Controlling Class
Certificateholder(s), 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 and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates 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
office or agency of the Certificate Administrator therein designated. The
Certificate Administrator shall give such notice to the other parties hereto at
the time such notice is given to Certificateholders.
(d) Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Certificate Administrator
shall distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts on deposit in the Distribution Account that is allocable to payments on
the relevant Class in accordance with Section 4.01. Any funds not distributed to
any Holder or Holders of Certificates of any Class on the Final 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 Certificate Administrator 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
Certificate Administrator, 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. 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. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable escheat laws, the Certificate
Administrator shall distribute to the Class R Certificateholders all unclaimed
funds and other assets which remain subject hereto.
SECTION 9.02. Additional Termination Requirements.
(a) If any Controlling Class Certificateholder(s), one or both of the
Master Servicers, and/or the Special Servicer purchase(s), or the Sole
Certificateholder(s) exchange(s) all of the Certificates for, all the Pooled
Mortgage Loans and each REO Property (or, in the case of any REO Property
related to any Mortgage Loan Group, the beneficial interest of the Trust Fund in
such REO Property) remaining in the Trust Fund as provided in Section 9.01, the
Trust and each REMIC Pool shall be terminated in accordance with the following
additional requirements, unless the purchasing party obtains at its own expense
and delivers to the Trustee and the Certificate Administrator an Opinion of
Counsel, addressed to the Trustee and the Certificate Administrator, to the
effect that the failure of the Trust to comply with the requirements of this
Section 9.02 will not result in an Adverse REMIC Event with respect to any REMIC
Pool:
(i) the Certificate Administrator shall specify the first day in
the 90-day liquidation period in a statement attached to the final Tax
Return for each REMIC Pool, pursuant to Treasury Regulations Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation under
Section 860F of the Code and any regulations thereunder (as evidenced by an
Opinion of Counsel to such effect delivered on behalf and at the expense of
the purchasing party);
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(ii) during such 90-day liquidation period and at or prior to the
time of making the final payment on the Certificates, the Certificate
Administrator shall sell or otherwise transfer all the Pooled Mortgage Loans
and each REO Property remaining in the Trust Fund to the relevant Master
Servicer(s), the Special Servicer, the applicable Controlling Class
Certificateholder(s) or the Sole Certificateholder(s), as the case may be,
in exchange for cash and/or Certificates in accordance with Section 9.01;
and
(iii) at the time of the final payment on the Certificates, the
Certificate Administrator shall distribute or credit, or cause to be
distributed or credited, to the Holders of the Certificates in accordance
with Section 4.01 all remaining cash on hand (other than cash retained to
meet claims), and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders hereby authorize
the Trustee to prepare and adopt, on behalf of the Trust, a plan of complete
liquidation of each REMIC Pool in the form of the notice of termination provided
for in Section 9.01(c) and in accordance with the terms and conditions of this
Agreement, which authorization shall be binding upon all successor
Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration.
(a) The Trustee shall elect to treat each REMIC Pool as a REMIC under
the Code and, if necessary, under Applicable State Law. Each such election will
be made on IRS Form 1066 or other appropriate federal tax or information return
or any appropriate state Tax Returns for the taxable year ending on the last day
of the calendar year in which the Certificates are issued.
(b) The Holder of Certificates evidencing the largest Percentage
Interest in the Class R Certificates is hereby designated as the Tax Matters
Person of each REMIC Pool and, in such capacity, shall be responsible to act on
behalf of such REMIC Pool in relation to any tax matter or controversy, to
represent such REMIC Pool in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority, to request an
administrative adjustment as to any taxable year of such REMIC Pool, to enter
into settlement agreements with any governmental taxing agency with respect to
such REMIC Pool, to extend any statute of limitations relating to any tax item
of such REMIC Pool and otherwise to act on behalf of such REMIC Pool in relation
to any tax matter or controversy involving such REMIC Pool; provided that the
Tax Administrator is hereby irrevocably appointed and agrees to act (in
consultation with the Tax Matters Person for each REMIC Pool) as agent and
attorney-in-fact for the Tax Matters Person for each REMIC Pool in the
performance of its duties as such. The legal expenses and costs of any action
described in this Section 10.01(b) and any liability resulting therefrom shall
be expenses, costs and liabilities of the Trust payable out of amounts on
deposit in the Distribution Account as provided by Section 3.05(b) unless such
legal expenses and costs are incurred by reason of a Tax Matters Person's or the
Tax Administrator's misfeasance, bad faith or negligence in the performance of,
or such Person's reckless disregard of, its obligations or are expressly
provided by this Agreement to be borne by any party hereto.
(c) The Tax Administrator shall prepare or cause to be prepared, submit
to the Trustee for execution and file all of the Tax Returns in respect of each
REMIC Pool (other than Tax Returns required to be filed by a Master Servicer
pursuant to Section 3.09(g)) and all of the applicable income tax and other
information returns for each Grantor Trust Pool. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor.
(d) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide: (i) to any Transferor of
a Class R Certificate, such information as is necessary for the application of
any tax relating to the transfer of a Class R Certificate to any Person who is
not a Permitted Transferee; (ii) to the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including reports
relating to interest, original issue discount and market discount or premium
(using the Prepayment Assumption as required); and (iii) to the IRS, the name,
title, address and telephone number of the Person who will serve as the
representative of each REMIC Pool.
(e) The Trustee and the Tax Administrator shall take such action and
shall cause each REMIC Pool to take such action as shall be necessary to create
or maintain the status thereof as a REMIC under the REMIC Provisions (and the
other parties hereto shall assist them, to the extent reasonably requested by
the Trustee or the Tax Administrator), to the extent that the Trustee or the Tax
Administrator, as applicable, has actual knowledge that any particular action is
required; provided that the Trustee and the Tax Administrator shall be deemed to
have knowledge of relevant tax laws. The Trustee or the Tax Administrator, as
applicable, shall not knowingly take or fail to take any action, or cause any
REMIC Pool to take or fail to take any action, that under the REMIC Provisions,
if taken or not taken, as the case may be, could result in an Adverse REMIC
Event in respect of any REMIC Pool or an Adverse Grantor Trust Event with
respect
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to either Grantor Trust Pool, unless the Trustee or the Tax Administrator, as
applicable, has received an Opinion of Counsel to the effect that the
contemplated action or non-action, as the case may be, will not result in an
Adverse REMIC Event or an Adverse Grantor Trust Event. None of the other parties
hereto shall take or fail to take any action (whether or not authorized
hereunder) as to which the Trustee or the Tax Administrator, as applicable, has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event or an Adverse Grantor Trust Event could occur with
respect to such action. In addition, prior to taking any action with respect to
any REMIC Pool or the assets thereof, or causing any REMIC Pool to take any
action, which is not contemplated by the terms of this Agreement, each of the
other parties hereto will consult with the Tax Administrator, in writing, with
respect to whether such action could cause an Adverse REMIC Event or an Adverse
Grantor Trust Event to occur, and no such other party shall take any such action
or cause any REMIC Pool to take any such action as to which the Tax
Administrator has advised it in writing that an Adverse REMIC Event or an
Adverse Grantor Trust Event could occur. The Tax 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 permitted by this Agreement (and in no
event by the Trust Fund or the Tax Administrator).
(f) If any tax is imposed on any REMIC Pool, including "prohibited
transactions" taxes as defined in Section 860F(a)(2) of the Code, any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, any taxes on contributions to any REMIC Pool 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)),
then such tax, together with all incidental costs and expenses (including
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Trustee, if such tax arises out of or results from a breach of any of its
obligations under Article IV, Article VIII or this Section 10.01; (ii) the
Certificate Administrator, if such tax arises out of or results from a breach by
the Certificate Administrator of any of its obligations under Article IV,
Article VIII or this Section 10.01 (which breach constitutes negligence, bad
faith or willful misconduct); (iii) the Tax Administrator, if such tax arises
out of or results from a breach by the Tax Administrator of any of its
obligations under Article IV, Article VIII or this Section 10.01 (which breach
constitutes negligence, bad faith or willful misconduct); (iv) the Fiscal Agent,
if such tax arises out of or results from a breach of any of its obligations
under Article IV or this Section 10.01; (v) a Master Servicer, if such tax
arises out of or results from a breach by such Master Servicer of any of its
obligations under Article III or this Section 10.01; (vi) 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 10.01; or (vii) the
Trust, out of the Trust Fund (exclusive of the Grantor Trust Pools), in all
other instances. If any tax is imposed on either Grantor Trust Pool, 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 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
10.01; (ii) a Master Servicer, if such tax arises out of or results from a
breach by such Master Servicer of any of its obligations under Article III or
this Section 10.01; (iii) 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 10.01; (iv) the Certificate Administrator, if such tax arises
out of or results from a breach by the Certificate Administrator of any of its
obligations under Article IV, Article VIII or this Section 10.01 (which breach
constitutes negligence, bad faith or willful misconduct); (v) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under Article IV, Article VIII or this
Section 10.01 (which breach constitutes negligence, bad faith or willful
misconduct); (iv) the Fiscal Agent, if such tax arises out of or results from a
breach of any of its obligations under Article IV or this Section 10.01; or (v)
the Trust, out of the portion of the Trust Fund constituting such Grantor Trust
Pool, in all other instances. Consistent with the foregoing, 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. Any such amounts payable by the Trust in
respect of taxes shall be paid by the Trustee out of amounts on deposit in the
Distribution Account.
(g) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool and Grantor Trust
Pool on a calendar year and an accrual basis.
(h) Following the Startup Day for each REMIC Pool, the Trustee shall
not (except as contemplated by Section 2.03) accept any contributions of assets
to any REMIC Pool 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 or
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the Trustee) to the effect that the inclusion of such assets in such REMIC Pool
will not result in an Adverse REMIC Event in respect of such REMIC Pool or an
Adverse Grantor Trust Event with respect to either Grantor Trust Pool.
(i) None of the Master Servicers, the Special Servicer, the Trustee or
the Fiscal Agent shall consent to or, to the extent it is within the control of
such Person, permit: (i) the sale or disposition of any Pooled Mortgage Loan
(except in connection with (A) a Breach or Document Defect regarding any Pooled
Mortgage Loan, (B) the foreclosure, default or reasonably foreseeable material
default of a Pooled Mortgage Loan, including the sale or other disposition of a
Mortgaged Property acquired by foreclosure, deed in lieu of foreclosure or
otherwise, (C) the bankruptcy of any REMIC Pool, or (D) the termination of the
Trust pursuant to Article IX of this Agreement); (ii) the sale or disposition of
any investments in any Investment Account for gain; or (iii) the acquisition of
any assets for the Trust (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Pooled Mortgage Loan, other than a Replacement Pooled Mortgage Loan substituted
for a Deleted Pooled Mortgage Loan and other than Permitted Investments acquired
in connection with the investment of funds in an Account or an interest in a
single member limited liability company, as provided in Section 3.16); 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 and in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not result in an Adverse REMIC Event in respect
of any REMIC Pool or an Adverse Grantor Trust Event with respect to either
Grantor Trust Pool.
(j) Except as otherwise permitted by Section 3.17(a), none of the
Master Servicers, the Special Servicer or the Trustee shall enter into any
arrangement by which any REMIC Pool will receive a fee or other compensation for
services or, to the extent it is within the control of such Person, permit any
REMIC Pool 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. At all times as may be required by the Code,
each of the respective parties hereto (to the extent it is within its control)
shall take necessary actions within the scope of its responsibilities as more
specifically set forth in this Agreement such that it does not cause
substantially all of the assets of each REMIC Pool to fail to 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.
(k) Within 30 days after the related Startup Day, the Tax Administrator
shall prepare and file with the IRS, with respect to each REMIC Pool, IRS Form
8811 "Information Return for Real Estate Mortgage Investment Conduits (REMICs)
and Issuers of Collateralized Debt Obligations".
(l) The parties intend that the portion of the Trust Fund consisting of
Post-ARD Additional Interest on the ARD Mortgage Loans in the Mortgage Pool and
any successor REO Pooled Mortgage Loans with respect thereto and the Class V
Sub-Account shall constitute, and that the affairs of such portion of the Trust
Fund shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. In addition, the
parties intend that the portion of the Trust Fund consisting of the REMIC I
Residual Interest, the REMIC II Residual Interest and the REMIC III Residual
Interest shall constitute, and the affairs of such portion of the Trust Fund
shall be conducted so as to qualify as, a Grantor Trust, and the provisions
hereof shall be interpreted consistently with this intention. The Tax
Administrator shall also perform on behalf of each Grantor Trust Pool all
reporting and other tax compliance duties that are the responsibility of such
Grantor Trust Pool under the Code or any compliance guidance issued by the IRS
or any state or local taxing authorities. The expenses of preparing and filing
such returns shall be borne by the Tax Administrator.
SECTION 10.02. The Depositor, the Master Servicers, the Special
Servicer and the Fiscal Agent to Cooperate with the Tax
Administrator.
(a) The Depositor shall provide or cause to be provided to the Tax
Administrator, within ten days after the Closing Date, all information or data
that the Tax Administrator reasonably determines to be relevant for tax purposes
as to the valuations and issue prices of the Certificates, including the price,
yield, prepayment assumption and projected cash flow of the Certificates.
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(b) Each of the Master Servicers, the Special Servicer and the Fiscal
Agent shall furnish such reports, certifications and information in its
possession, and access to such books and records maintained thereby, as may
relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Tax Administrator in order to enable it to perform its duties
under this Article X.
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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 parties hereto, without the consent of any of the
Certificateholders or any of the Non-Pooled Noteholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein or to correct any error, (iii)
to make any other provisions with respect to matters or questions arising
hereunder which shall not be inconsistent with the then existing provisions
hereof, (iv) as evidenced by an Opinion of Counsel delivered to the Trustee, the
Master Servicers and the Special Servicer, to relax or eliminate (A) 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 (B) any transfer restriction imposed on the Certificates pursuant
to Section 5.02(b) or Section 5.02(c) (if applicable law is amended or clarified
such that any such restriction may be relaxed or eliminated), (v) as evidenced
by an Opinion of Counsel delivered to the Trustee, either (X) 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 any REMIC Pool or either Grantor Trust Pool at least from the
effective date of such amendment, or (Y) 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 REMIC Pool or either Grantor
Trust Pool, (vi) subject to Section 5.02(d)(iv), to modify, add to or eliminate
any of the provisions of Section 5.02(d)(i), (ii) or (iii), or (vii) to avoid an
Adverse Rating Event with respect to any Class of Rated Certificates; provided
that (I) no such amendment may significantly change the activities of the Trust;
and (II) any such amendment for the specific purposes described in clause (iii),
(iv) or (vii) above shall not adversely affect in any material respect the
interests of any Certificateholder or any third-party beneficiary to this
Agreement or any provision hereof, as evidenced by the Trustee's and Certificate
Administrator's receipt of an Opinion of Counsel to that effect (or,
alternatively, in the case of a Class of Rated Certificates, a written
confirmation from each Rating Agency to the effect that such amendment shall not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency, or, alternatively, in the case of the
holder of the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan as a third
party beneficiary of this Agreement, a written confirmation from each applicable
Rating Agency for the 11 Penn Plaza Non-Pooled Pari Passu Companion Loan
Securities to the effect that such amendment shall not result in an Adverse
Rating Event with respect to any class of 11 Penn Plaza Non-Pooled Pari Passu
Companion Loan Securities rated by such applicable Rating Agency); and (III)
with respect to any such amendment for the specific purposes described in clause
(iii) above, the Trustee and the Certificate Administrator shall receive a
written confirmation from each Rating Agency to the effect that such amendment
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency and also shall receive a written
confirmation from each applicable Rating Agency for the 11 Penn Plaza Non-Pooled
Pari Passu Companion Loan Securities to the effect that such amendment shall not
result in an Adverse Rating Event with respect to any class of 11 Penn Plaza
Non-Pooled Pari Passu Companion Loan Securities rated by such applicable Rating
Agency. This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders, as and to the extent provided by Section 8.15(d).
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto, with the consent of the Holders of Certificates
entitled to not less than 66-2/3% of the Voting Rights allocated to all of the
Classes that are materially affected by the amendment and without the consent of
any of the Non-Pooled Noteholders, 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 the Pooled
Mortgage Loans and/or REO Properties which are required to be distributed on any
Certificate, without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates in a manner other than as described in clause (i) above,
without the consent of the Holders of all
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Certificates of such Class, (iii) modify the provisions of this Section 11.01 or
the definition of "Servicing Standard", without the consent of the Holders of
all Certificates then outstanding, (iv) significantly change the activities of
the Trust, without the consent of the Holders of Certificates entitled to not
less than 51% of all the Voting Rights (not taking into account Certificates
held by the Depositor or any Pooled Mortgage Loan Seller or any of their
respective Affiliates or agents), or (v) adversely affect in any material
respect the interests of any third-party beneficiary to this Agreement or any
provision herein, without the consent of such third-party beneficiary. The
Trustee shall not agree to amend any Pooled Mortgage Loan Purchase Agreement in
any manner that would adversely affect in any material respect the interests of
the Holders of any Class of Certificates, except with the consent of the Holders
of all Certificates of such Class. 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 the matters described above as they would if registered in the name
of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, none of
the Certificate Administrator, the Trustee, the Master Servicers or the Special
Servicer shall consent to any amendment to this Agreement unless it shall first
have obtained or been furnished with an Opinion of Counsel to the effect that
neither such amendment nor the exercise of any power granted to any party hereto
in accordance with such amendment will result in an Adverse REMIC Event with
respect to any REMIC Pool or an Adverse Grantor Trust Event with respect to
either Grantor Trust Pool.
(d) Promptly after the execution and delivery of any amendment by all
parties thereto, the Certificate Administrator shall deliver a copy thereof to
each Certificateholder, each Rating Agency and each Serviced Non-Pooled Mortgage
Loan Noteholder.
(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, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee and the Certificate Administrator each may but shall
not be obligated to enter into any amendment pursuant to this Section 11.01 that
affects its rights, duties and immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes 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 Distribution Account.
(h) Notwithstanding any contrary provision of this Section, the parties
shall not enter into any amendment of this Agreement that would be reasonably
likely to have an adverse effect on the Primary Servicer's rights and duties
under the Primary Servicing Agreement, unless the Primary Servicer has consented
to such amendment (such consent not to be unreasonably withheld or delayed).
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or the Special
Servicer, as applicable, determines in its reasonable good faith judgment, that
such recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
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(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 or Non-Pooled
Noteholder shall not operate to terminate this Agreement or the Trust, nor
entitle such Certificateholder's or Non-Pooled Noteholder'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, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder or Non-Pooled Noteholder 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 and/or Non-Pooled Noteholders from time to time as partners
or members of an association; nor shall any Certificateholder or Non-Pooled
Noteholder 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 or Non-Pooled Noteholder 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 Person 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 (in the case of a Certificateholder) or the
related Non-Pooled Noteholder, as the case may be, 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 of any other Holders of
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder (which priority or preference is not otherwise provided for
herein), or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03, 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 substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx (with a copy
to Xxxxxx Xxxxxxxxx, Esq., telecopy number: (000) 000-0000); (ii) in the case of
PAR as a Master Servicer, Prudential Asset Resources Inc., 0000 Xxxx Xxxxxx,
Xxxxx 0000X, Xxxxxx, Xxxxx, 00000, Attention: Xxx Xxxxxx, telecopy number: (214)
777-4556; (iii) in the case of WFB as a Master Servicer, Xxxxx
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Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing (with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 94111); (iv) in the case of the
Special Servicer, ARCap Servicing, Inc., 0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxxxx, telecopy number (000) 000-0000
(with a copy to Xxxxx Xxxxxx, ARCap Servicing, Inc., 0000 X. XxxXxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, telecopy number (000) 000-0000); (v)
in the case of WFB as the Certificate Registrar, Certificate Administrator and
Tax Administrator, Xxxxx Fargo Bank, National Association, 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration
(CMBS), Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6, telecopy
number: (000) 000-0000; (vi) in the case of the Trustee, LaSalle Bank National
Association, 000 Xxxxx XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset Backed Securities Trust Services Group, Bear Xxxxxxx Commercial Mortgage
Securities II Inc., 2004-PWR6, telecopy number: (000) 000-0000; (vii) in the
case of the Fiscal Agent, ABN AMRO Bank N.V., 000 Xxxxx XxXxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities Trust Services
Group, Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6, telecopy
number: (000) 000-0000; (viii) in the case of the Rating Agencies, (A) Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial MBS Monitoring Department, facsimile number: (000) 000-0000, and (B)
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance telecopy number (000) 000-0000; (ix) in the case of the Primary
Servicer, Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxx 00000-0000, Attention: Xxxxxx Xxxxxxx, facsimile number: (614)
249-4247; and (x) in the case of any Pooled Mortgage Loan Seller, the address
for notices to such Pooled Mortgage Loan Seller under the related Pooled
Mortgage Loan Purchase Agreement; or as to each such Person such other address
and/or telecopy number 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
covenant(s), agreement(s), provision(s) or term(s) 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. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and, as
third party beneficiaries (with all right to enforce the obligations hereunder
intended for their benefit as if a party hereto), the Underwriters, the
Designated Sub-Servicers and the non-parties referred to in Sections 6.03, 8.05,
and Section 3.22(f) and all such provisions shall inure to the benefit of the
Certificateholders. Each of the Designated Sub-Servicers shall be a third-party
beneficiary to the obligations of a successor Master Servicer under Section
3.22; provided that the sole remedy for any claim by a Designated Sub-Servicer
as third party beneficiary pursuant to this Section 11.07 shall be against a
successor Master Servicer in its corporate or company capacity and no such
Designated Sub-Servicer shall have any rights or claims against the Trust Fund
or any party hereto (other than such successor Master Servicer) as a result of
any rights conferred on such Designated Sub-Servicer as a third-party
beneficiary under this Section 11.07. The Non-Pooled Noteholders (other than any
Non-Pooled Noteholder that is same Person as or an Affiliate of the related
Borrower) and any designees thereof acting on behalf of or exercising the rights
of such Non-Pooled Noteholders shall be third-party beneficiaries to this
Agreement with respect to their rights as specifically provided for herein.
SECTION 11.08. 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.
-249-
SECTION 11.09. Notices to and from the Rating Agencies and the
Depositor.
(a) The Trustee (or, with respect to items (v) and (vii) below, the
Certificate Administrator) shall promptly provide notice to each Rating Agency
and the Depositor (and, with respect to items (i), (ii) and (iii) below, each
Serviced Non-Pooled Mortgage Loan Noteholder; provided that notice with respect
to item (ii) below shall be given within one Business Day of the Trustee's
actual knowledge thereof) with respect to each of the following of which a
Responsible Officer of the Trustee 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, termination, merger or consolidation of any
Master Servicer or Special Servicer and the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by a Pooled
Mortgage Loan Seller as contemplated by Section 2.03; and
(vii) the final payment to any Class of Certificateholders.
(b) Each Master Servicer shall promptly provide notice to each Rating
Agency and the Depositor with respect to each of the following of which it has
actual knowledge:
(i) the resignation or removal of the Trustee and the appointment
of a successor; and
(ii) any change in the location of its Collection Account or any
Companion Note Custodial Account maintained by it, as applicable.
(c) Each of the Master Servicers and the Special Servicer shall
promptly furnish (in hard copy format or through use of a Master Servicer's
internet website), to each Rating Agency copies of the following items (in each
case, at or about the same time that it delivers or causes the delivery of such
item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports;
(iii) each report prepared pursuant to Section 3.09(e);
(iv) to the extent so required by a Rating Agency to confirm any
rating assigned thereby to any Class of Rated Certificates or any class of
11 Penn Plaza Non-Pooled Pari Passu Companion Loan Securities, such other
information in the possession of the applicable Master Servicer and/or
Special Servicer as such Rating Agency may reasonably request.
(d) The Certificate Administrator shall promptly deliver or otherwise
make available to each Rating Agency (in hard copy format or through use of the
Certificate Administrator's internet website) a copy of each Certificateholder
Report forwarded to the Holders of the Certificates (in each case, at or about
the same time that it
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delivers such Certificateholder Report to such Holders). Any Restricted Servicer
Reports delivered electronically as aforesaid shall be accessible on the
Certificate Administrator's internet website on a restricted basis.
(e) The parties intend that each Rating Agency provide to the Trustee,
upon request, a listing of the then-current rating (if any) assigned by such
Rating Agency to each Class of Certificates then outstanding.
SECTION 11.10. Notices to Controlling Class Representative.
The Trustee, the Master Servicers and the Special Servicer shall each
deliver to the Controlling Class Representative a copy of each notice or other
item of information such Person is required to deliver to the Rating Agencies
pursuant to Section 11.09, in each case simultaneously with the delivery thereof
to the Rating Agencies, to the extent not already delivered to the Controlling
Class Representative pursuant to this Agreement.
SECTION 11.11. 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.
-251-
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.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC.
Depositor
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer
By: /s/ C. Xxxx Xxxxx
-------------------------------------------
Name: C. Xxxx Xxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
a Master Servicer
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
ARCAP SERVICING, INC.
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
PSA
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Solely in its capacity as Certificate
Administrator and Tax Administrator
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: FVP
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: FVP
By: /s/ Xxxxxxx Xxxx
-------------------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President
PSA
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 15th day of December 2004, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. Xxxxxx, personally known to me to
be a Vice President of Bear Xxxxxxx Commercial Mortgage Securities II Inc., one
of the entities that executed the within instrument, and also known to me to be
the person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 20th day of December 2004, before me, a notary public in and
for said State, personally appeared C. Xxxx Xxxxx, personally known to me
to be a Vice President of Prudential Asset Resources, Inc., one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 16th day of December 2004, before me, a notary public in and
for said State, personally appeared Xxxxxxx X. XxXxxxx, personally known to me
to be a Vice President of Xxxxx Fargo Bank, one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx Xxxxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 15th day of December 2004, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx, personally known to me to
be a President of ARCAP Servicing, Inc., one of the entities that executed the
within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxx Xxxxx Xxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 21st day of December 2004, before me, a notary public in and
for said State, personally appeared Xxxxxxx Xxxxxxx, personally known to me to
be a Vice President of Xxxxx Fargo Bank, N.A., one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx Xxxxxxxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 17th day of December 2004, before me, a notary public in and
for said State, personally appeared Xxxxxx X. Xxxxx, personally known to me
to be a FVP of LaSalle Bank N.A., one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-0, X-0, X-0, A-J, B, C, D, E, F, G, H, J, K,
L, M, N, P, Q, X-1 AND X-2 CERTIFICATES
CLASS [ ] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2004-PWR6
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC.
Pass-Through Rate: [____% Class [Principal Balance] [Notional Amount] of the
per annum][Variable] Class [ ] Certificates as of the Closing Date:
$__________
Closing Date: December 21, 2004 Initial Certificate [Principal Balance] [Notional
Amount] of this Certificate as of the Closing Date:
$__________
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
January 11, 2005 Loans as of the Closing Date ("Initial Pool
Balance"): $[ ]
Master Servicer: Trustee:
Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax
Xxxxx Fargo Bank, National Association Administrator:
Xxxxx Fargo Bank, National Association
Special Servicer: Fiscal Agent:
ARCap Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. [ ] -___ CUSIP No.:
ISIN No.: ________________
A-1-1
[FOR BOOK-ENTRY CERTIFICATES][UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE CERTIFICATE ADMINISTRATOR 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.]
[FOR PRIVATE CERTIFICATES][THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED
STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION
OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES II INC., LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS
A-1-2
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES ONE OR
MORE "REGULAR INTERESTS" 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, AS AMENDED (THE "CODE").
[FOR SUBORDINATE CERTIFICATES][THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE
CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
[FOR PRINCIPAL BALANCE CERTIFICATES][THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.]
[FOR CLASS X-1 AND CLASS X-2 CERTIFICATES][THE OUTSTANDING CERTIFICATE NOTIONAL
AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS
CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE
THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.]
[FOR REGULATION S GLOBAL CERTIFICATES][PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF (A) THE CLOSING DATE AND (B) THE COMMENCEMENT OF THE INITIAL
OFFERING OF THE CERTIFICATES IN RELIANCE ON REGULATION S, THIS CERTIFICATE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR
TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED. NO BENEFICIAL OWNERS OF
THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL OR INTEREST
HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE
TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that [FOR BOOK-ENTRY CERTIFICATES: CEDE & CO.][FOR
DEFINITIVE CERTIFICATES: [ ]] is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the [principal
balance][notional amount] of this Certificate (its "Certificate [Principal
Balance][Notional Amount]") as of the Closing Date by the aggregate [principal
balance][notional amount] of all the Class [ ] Certificates (their "Class
[Principal Balance][Notional Amount]") as of the Closing Date) in that certain
beneficial ownership interest in the Trust Fund evidenced by all the Class [ ]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 2004 (the
"Agreement"), among Bear Xxxxxxx Commercial Mortgage
A-1-3
Securities II Inc., as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Prudential Asset Resources, Inc., as a
master servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement), Xxxxx Fargo Bank, National Association,
as a master servicer (in such capacity, a "Master Servicer," which term includes
any successor entity under the Agreement), as certificate administrator (in such
capacity, the "Certificate Administrator," which term includes any successor
entity under the Agreement) and as tax administrator (in such capacity, the "Tax
Administrator," which term includes any successor entity under the Agreement),
ARCap Servicing, Inc., as special servicer (in such capacity, the "Special
Servicer," which term includes any successor entity under the Agreement),
LaSalle Bank National Association, as trustee (the "Trustee," which term
includes any successor entity under the Agreement), and ABN AMRO Bank N.V., as
fiscal agent (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, capitalized terms used herein
have the respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound. In the event that
there is any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), 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 all the Holders of the Class [ ] Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator 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 Certificate Administrator 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.
Notwithstanding the foregoing, the final distribution on this Certificate [FOR
PRINCIPAL BALANCE CERTIFICATES][(determined without regard to any possible
future reimbursement of any portion 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.
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 Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Account (if established), the Companion Note Custodial
A-1-4
Account, and any other accounts established pursuant to the Agreement 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.
[FOR PRINCIPAL BALANCE CERTIFICATES][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.]
This Certificate is issuable in fully registered form only without interest
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
[FOR PRIVATE CERTIFICATES][No transfer, sale, pledge or other disposition
of this Certificate or any interest herein shall be made unless that transfer,
sale, pledge or other disposition is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable securities
or blue sky laws of any state or other jurisdiction within the United States,
its territories and possessions, or is otherwise made in accordance with the
Securities Act and such other securities or blue sky laws. If a transfer of this
Certificate is to be made without registration under the Securities Act, then
(except in limited circumstances specified in the Agreement) 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 F-1 to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (ii) an Opinion
of Counsel satisfactory to the Certificate Administrator to the effect that such
prospective Transferee is an Institutional Accredited Investor or a Qualified
Institutional Buyer and such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund, the Depositor, either Master Servicer, the Special Servicer, the Trustee,
the Certificate Administrator, the Tax Administrator, the Fiscal Agent 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.]
[FOR PRIVATE CERTIFICATES][If this Certificate constitutes a Rule 144A
Global Certificate and a transfer of any interest in this Certificate is to be
made without registration under the Securities Act, then (except under limited
circumstances specified in the Agreement) the Certificate Owner desiring to
effect such transfer shall be required to obtain either (i) a certificate from
such Certificate Owner's prospective Transferee substantially in the form
attached as Exhibit F-2C to the Agreement, or (ii) an Opinion of Counsel to the
effect that such prospective Transferee is a Qualified Institutional Buyer and
such transfer may be made without registration under the Securities Act. Except
as discussed below or under such other limited circumstances as are provided in
the Agreement, if this Certificate constitutes a Rule
X-0-0
000X Xxxxxx Xxxxxxxxxxx, then interests herein shall not be transferred to any
Person who takes delivery in the form of an interest in anything other than a
Rule 144A Global Certificate.]
[FOR PRIVATE CERTIFICATES][Except under such limited circumstances as are
provided in the Agreement, if this Certificate constitutes a Regulation S Global
Certificate, then beneficial interests in this Certificate shall not be
transferred to any Person other than a non-United States Securities Person who
takes delivery in the form of a beneficial interest in this Certificate. If the
transfer occurs on or prior to the Release Date, then the Certificate Owner
desiring to effect such transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a written certification substantially
in the form attached as Exhibit F-2D to the Agreement. On or prior to the
Release Date, beneficial interests in any Regulation S Global Certificate may be
held only through Euroclear or Clearstream. After the Release Date, beneficial
interests in any Regulation S Global Certificate may be held through Euroclear,
Clearstream or any other direct account holder at DTC.]
[FOR PRIVATE CERTIFICATES][Notwithstanding the foregoing, any interest in a
Rule 144A Global Certificate may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) who takes delivery in the form of a Definitive Certificate
of the same Class as such Global Certificate upon delivery to the Certificate
Registrar and the Certificate Administrator of (i) such certifications and/or
opinions as are contemplated above with respect to transfers of this Certificate
in definitive form and (ii) such written orders and instructions as are required
under the applicable procedures of the Depository, Clearstream and/or Euroclear
to direct the Certificate Administrator to debit the account of a Depository
Participant by a denomination of interests in such Global Certificate. Upon
delivery to the Certificate Registrar of the certifications and/or opinions
contemplated above with respect to transfers of this Certificate in definitive
form, the Certificate Administrator, subject to and in accordance with the
applicable procedures of the Depository, shall reduce the denomination of the
subject Global Certificate, and cause a Definitive Certificate of the same Class
as such Global Certificate, and in a denomination equal to the reduction in the
denomination of such Global Certificate, to be executed, authenticated and
delivered in accordance with this Agreement to the applicable Transferee.]
[FOR PRIVATE CERTIFICATES][None of the Depositor, the Underwriters, the
Certificate Administrator, the Trustee, the Fiscal Agent, the Master Servicers,
the Special Servicer, the Tax Administrator or the Certificate Registrar is
obligated to register or qualify the Class [ ] 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 this Certificate or any interest
herein without registration or qualification. Any Certificateholder or
Certificate Owner desiring to effect a transfer of this Certificate or any
interest herein shall, and does hereby agree to, indemnify the Depositor, the
Underwriters, the Certificate Administrator, the Trustee, the Fiscal Agent, each
Master Servicer, the Special Servicer, the Tax Administrator and the Certificate
Registrar 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 or the provisions
described above.]
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[FOR BOOK-ENTRY CERTIFICATES][The Global Certificates shall be deposited
with the Certificate Administrator as custodian for the Depository and
registered in the name of Cede & Co. as nominee of the Depository.]
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest herein by the prospective
Transferee would result in a non-exempt violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or would result in the imposition of an excise tax
under Section 4975 of the Code. [FOR PRIVATE CERTIFICATES][Except in limited
circumstances, the Certificate Registrar shall refuse to register the transfer
of this Certificate (and, if applicable, any Certificate Owner shall refuse to
transfer an interest in this Certificate), unless it has received from the
prospective Transferee (i) a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan; or (ii) a certification to the effect that the purchase and holding
of this Certificate by such prospective Transferee are exempt from the
prohibited transaction provisions of Sections 406(a) and (b) and 407 of ERISA
and the excise taxes on such prohibited transactions imposed under Section 4975
(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is investment
grade rated and is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 90-30, 90-29 or 90-24, a
certification to the effect that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Certificate Administrator, the Depositor, any Pooled Mortgage Loan Seller,
either Master Servicer, the Special Servicer, the Primary Servicer, any
Sub-Servicer, any Person responsible for the servicing of any Non-Trust-Serviced
Pooled Mortgage Loan, any Exemption-Favored Party or any Borrower with respect
to Pooled Mortgage Loans constituting more than 5% of the aggregate unamortized
principal of all the Pooled Mortgage Loans determined as of the Closing Date, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain from each
of its Transferees that is a Plan a written representation that such Transferee
satisfies the requirements of the immediately preceding clauses (iii)(X) and
(iii)(Y), together with a written agreement that such Transferee will obtain
from each of its Transferees that is a Plan a similar written representation
regarding satisfaction of the requirements of the immediately preceding clauses
(iii)(X) and (iii)(Y); or (iv) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.]
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
A-1-7
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of the same Class 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 transfer or exchange of this
Certificate, but the Certificate Administrator or 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 this
Certificate.
[FOR BOOK-ENTRY 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, and
accordingly, this Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicers, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, the Fiscal Agent 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 Servicers, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, the Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Pooled Mortgage Loans and each REO Property remaining in the Trust Fund; and
(iii) the exchange by the Sole Certificateholder(s) of all the Certificates for
all Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
Special Servicer or any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders to purchase from the Trust Fund all the
Pooled Mortgage Loans and each REO Property remaining therein. The exercise of
such right may 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 1.0% or less of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights
A-1-8
allocated to all of the Classes materially affected by the amendment and, if
adversely affected by the amendment, any third-party beneficiary. 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 any
REMIC Pool as a REMIC, 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 laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
A-1-9
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as
Certificate Registrar
By:
--------------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [ ] Certificates referred to in the within-
mentioned Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as
Authenticating Agent
By:
--------------------------------------------
Authorized Representative
A-1-10
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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:______________________________________________________________
_____________________________________________________________________________.
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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-1-11
[FOR BOOK ENTRY-CERTIFICATES INSERT THIS SCHEDULE A]
SCHEDULE A
SCHEDULE OF EXCHANGES IN GLOBAL SECURITY
The following exchanges of a part of this Global Security have been made:
Signature of
Amount of authorized
Amount of Increase in Principal Amount of officer of
Decrease in Principal Principal Amount this Global Security Trustee or
Amount of this of this Global following such securities
Date of Exchange Global Security Security decrease (or increase) custodian
------------------------------------------------------------------------------------------------------------------
X-0-00
XXXXXXX X-0
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2004-PWR6
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC.
Closing Date: December 21, 2004 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
January 11, 2005 Loans as of the Closing Date ("Initial Pool
Balance"): $[ ]
Master Servicer: Prudential Asset Resources, Inc. Trustee:
LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax Administrator:
Xxxxx Fargo Bank, National Association Xxxxx Fargo Bank, National Association
Special Servicer: Fiscal Agent:
ARCap Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. R-___
A-2-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES II INC., LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH 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, IF ANY, ON THIS CERTIFICATE.
A-2-2
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2004 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities II
Inc., as depositor (the "Depositor," which term includes any successor entity
under the Agreement), Prudential Asset Resources, Inc., as a master servicer (in
such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement), Xxxxx Fargo Bank, National Association, as a master
servicer (in such capacity, a "Master Servicer," which term includes any
successor entity under the Agreement), as certificate administrator (in such
capacity, the "Certificate Administrator," which term includes any successor
entity under the Agreement) and as tax administrator (in such capacity, the "Tax
Administrator," which term includes any successor entity under the Agreement),
ARCap Servicing, Inc., as special servicer (in such capacity, the "Special
Servicer," which term includes any successor entity under the Agreement),
LaSalle Bank National Association, as trustee (the "Trustee," which term
includes any successor entity under the Agreement), and ABN AMRO Bank N.V., as
fiscal agent (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, capitalized terms used herein
have the respective meanings assigned thereto 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 its
acceptance hereof assents and by which such Holder is bound. In the event that
there is any conflict between any provision of this Certificate and any
provision of the Agreement, such provision of this Certificate shall be
superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), 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 all the Holders of the Class R Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator 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 Certificate Administrator 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.
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 Distribution Account, the
A-2-3
Collection Accounts, the Reserve Accounts, the Interest Reserve Account, the
Excess Liquidation Proceeds Account, the REO Accounts (if established), the
Companion Note Custodial Account, and any other accounts established pursuant to
the Agreement 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.
This Certificate is issuable in fully registered form only without interest
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent 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 Underwriters, the Certificate Administrator, the
Trustee, the Fiscal Agent, the Master Servicers, the Special Servicer, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class R 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 this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Certificate Administrator,
the Trustee, each Master Servicer, the Special Servicer, the Fiscal Agent, the
Tax Administrator and the Certificate Registrar 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 or the provisions described in the six preceding
paragraphs.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other retirement arrangement, including individual
retirement accounts and
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annuities, Xxxxx plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, including insurance
company general accounts, that is subject to ERISA or Section or Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing this
Certificate or any interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code.
Except in limited circumstances, the Certificate Registrar shall refuse to
register the transfer of this Certificate unless it has received from the
prospective Transferee either: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan; or (ii) a certification of facts and an Opinion of
Counsel which otherwise establish to the reasonable satisfaction of the Trustee
that such transfer will not result in a violation of Section 406 or 407 of ERISA
or Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its 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 Certificate Administrator (i) to deliver payments to
a Person other than such Person and (ii) to negotiate the terms of any mandatory
disposition, to execute all instruments of Transfer and to do all other things
necessary in connection with any such disposition. Each Person holding or
acquiring any Ownership Interest in this Certificate must be a Permitted
Transferee and shall promptly notify the Certificate Administrator and the Tax
Administrator 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 H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
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. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or the Certificate Administrator 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. In connection therewith, the Certificate Registrar shall not register
the transfer of an Ownership Interest in this Certificate to any entity
classified as a partnership under the Code unless at the time of transfer, all
of its beneficial owners are United States Securities Persons.
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 herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-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
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acquiring an Ownership Interest in this Certificate, by purchasing such
Ownership Interest herein, agrees to give the Certificate Administrator and the
Tax Administrator 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."
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Certificate Administrator to confirm that, it has (i)
sole investment discretion with respect to each such account and (ii) full power
to make the acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account described above in this
Certificate.
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 Administrator and the Tax Administrator 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 result in an Adverse
Rating Event; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Administrator and the Tax Administrator, to the effect that
such modification of, addition to or elimination of such provisions will not
cause any REMIC Pool to cease to qualify as a REMIC or be subject to an
entity-level tax caused by the Transfer of a Class R Certificate to a Person
that 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
Class R Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization", a "Disqualified Non-United States Tax Person" or a "Disqualified
Partnership" (each as defined in the Agreement) and other than a foreign
permanent establishment or fixed base (each within the meaning of any applicable
income tax treaty) of a United States Tax Person or any other Person as to whom
the transfer of this Certificate may cause any REMIC Pool to fail to qualify as
a REMIC at any time that any Certificate is outstanding.
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 Certificates of the same Class 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 transfer or exchange of this
Certificate, but the Certificate Administrator or 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 this
Certificate.
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The Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicers, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, the Fiscal Agent 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 Servicers, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, the Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by the Certificate Administrator on behalf of the Trustee and required to be
paid to them pursuant to the Agreement following the earlier of (i) the final
payment or other liquidation (or any advance with respect thereto) of the last
Pooled Mortgage Loan or REO Property remaining in the Trust Fund; (ii) the
purchase by one or both Master Servicers, the Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, at a price determined as provided in the Agreement, of all
the Mortgage Loans and each REO Property remaining in the Trust Fund; and (iii)
the exchange by the Sole Certificateholder(s) of all the Certificates for all
Pooled Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, either or both Master Servicers, the
Special Servicer or any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders to purchase from the Trust Fund all the
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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. 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 any REMIC Pool as a REMIC, 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.
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This Certificate shall be construed in accordance with the laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as
Certificate Registrar
By:
--------------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the within-mentioned
Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as
Authenticating Agent
By:
--------------------------------------------
Authorized Representative
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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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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-0-00
XXXXXXX X-0
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2004-PWR6
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC.
Closing Date: December 21, 2004 Percentage Interest evidenced by this Class V
Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
January 11, 2005 Loans as of the Closing Date ("Initial Pool
Balance"): $[ ]
Master Servicer: Prudential Asset Resources, Inc. Trustee:
LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax Administrator:
Xxxxx Fargo Bank, National Association Xxxxx Fargo Bank, National Association
Special Servicer: Fiscal Agent:
ARCap Servicing, Inc. ABN AMRO Bank N.V.
Certificate No. V-___
A-3-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES OR BLUE SKY LAWS OF
ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS TERRITORIES AND
POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS
CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION
MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION OUTSIDE OF
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS AND SALES MUST
COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN BEAR XXXXXXX
COMMERCIAL MORTGAGE SECURITIES II INC., LASALLE BANK NATIONAL ASSOCIATION, ABN
AMRO BANK N.V., PRUDENTIAL ASSET RESOURCES, INC., XXXXX FARGO BANK, NATIONAL
ASSOCIATION, ARCAP SERVICING, INC., OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Certificate (as specified above) in that
certain beneficial ownership interest in the Trust Fund evidenced by all the
Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of December 1,
2004 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities II
Inc., as depositor (the "Depositor," which term includes any successor entity
under the
A-3-2
Agreement), Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a "Master Servicer," which term includes any successor entity under
the Agreement), Xxxxx Fargo Bank, National Association, as a master servicer (in
such capacity, a "Master Servicer," which term includes any successor entity
under the Agreement), as certificate administrator (in such capacity, the
"Certificate Administrator," which term includes any successor entity under the
Agreement) and as tax administrator (in such capacity, the "Tax Administrator,"
which term includes any successor entity under the Agreement), ARCap Servicing,
Inc. as special servicer (in such capacity, the "Special Servicer," which term
includes any successor entity under the Agreement), LaSalle Bank National
Association, as trustee (the "Trustee," which term includes any successor entity
under the Agreement), and ABN AMRO Bank N.V., as fiscal agent (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, capitalized terms used herein have the respective
meanings assigned thereto 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 its acceptance hereof
assents and by which such Holder is bound. In the event that there is any
conflict between any provision of this Certificate and any provision of the
Agreement, such provision of this Certificate shall be superseded to the extent
of such inconsistency.
Pursuant to the terms of the Agreement, beginning on the First Distribution
Date specified above, distributions will be made on that date (the "Distribution
Date") each month that is the 11th day of such month (or, if such 11th day is
not a Business Day, on the next succeeding Business Day), 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 all the Holders of the Class V Certificates on the applicable Distribution
Date pursuant to the Agreement. All distributions made under the Agreement on
this Certificate will be made by the Certificate Administrator 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 Certificate Administrator 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.
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 Distribution Account, the Collection Accounts,
the Reserve Accounts, the Interest Reserve Account, the Excess Liquidation
Proceeds Account, the REO Accounts (if established), the Companion Note
Custodial Account, and any other accounts established pursuant to the Agreement
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
A-3-3
expenses incurred, with respect to the Mortgage Loans and the payment of
interest on such advances and expenses.
This Certificate is issuable in fully registered form only without interest
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate or any
interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable securities or blue sky laws of any state
or other jurisdiction within the United States, its territories and possessions,
or is otherwise made in accordance with the Securities Act and such other
securities or blue sky laws. If a transfer of this Certificate is to be made
without registration under the Securities Act, then (except in limited
circumstances specified in the Agreement) 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
F-1 to the Agreement and a certificate from such Certificateholder's prospective
Transferee substantially in the form attached as Exhibit F-2A to the Agreement;
or (ii) an Opinion of Counsel satisfactory to the Certificate Administrator to
the effect that such prospective Transferee is a Qualified Institutional Buyer
and such transfer may be made without registration under the Securities Act
(which Opinion of Counsel shall not be an expense of the Trust Fund, the
Depositor, either Master Servicer, the Special Servicer, the Trustee, any Fiscal
Agent 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 Underwriters, the Certificate Administrator, the
Trustee, the Fiscal Agent, the Master Servicers, the Special Servicer, the Tax
Administrator or the Certificate Registrar is obligated to register or qualify
the Class V 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 this Certificate or any interest herein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, the Underwriters, the Trustee, the Certificate
Administrator, the Tax Administrator, each Master Servicer, the Special
Servicer, the Fiscal Agent and the Certificate Registrar 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 or the provisions described in the six
preceding paragraphs.
No transfer of this Certificate or any interest herein shall be made (A) to
any retirement plan or other retirement arrangement, including individual
retirement accounts and annuities, Xxxxx plans and collective investment funds
and separate accounts in which such plans, accounts or arrangements are
invested, including insurance company general accounts, that is subject to ERISA
or the Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing this Certificate or any interest herein on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan, if the purchase and
holding of this Certificate or such interest
A-3-4
herein by the prospective Transferee would result in a violation of Section 406
or 407 of ERISA or Section 4975 of the Code or would result in the imposition of
an excise tax under Section 4975 of the Code. Except in limited circumstances,
the Certificate Registrar shall refuse to register the transfer of this
Certificate unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent for one
or more accounts, such Person shall be required to deliver to the Certificate
Registrar a certification to the effect that, and such other evidence as may be
reasonably required by the Certificate Administrator to confirm that, it has (i)
sole investment discretion with respect to each such account and (ii) full power
to make the acknowledgments, representations, warranties, certifications and/or
agreements with respect to each such account described above in 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 Certificates of the same Class 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 transfer or exchange of this
Certificate, but the Certificate Administrator or 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 this
Certificate.
The Depositor, the Master Servicers, the Special Servicer, the Trustee, the
Certificate Administrator, the Tax Administrator, the Fiscal Agent, the
Certificate Registrar and any agent of the Depositor, the Master Servicers, the
Special Servicer, the Trustee, the Certificate Administrator, the Tax
Administrator, the Fiscal Agent 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 Servicers, the Special Servicer,
the Trustee, the Certificate Administrator, the Tax Administrator, the Fiscal
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
Subject to certain terms and conditions set forth in the Agreement, the
Trust Fund and the obligations created by the Agreement shall terminate upon
payment (or provision for payment) to the Certificateholders of all amounts held
by or on behalf of the Trustee and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Pooled Mortgage
A-3-5
Loan or REO Property remaining in the Trust Fund; (ii) the purchase by one or
both Master Servicers, the Special Servicer or any single Controlling Class
Certificateholder or group of Controlling Class Certificateholders, at a price
determined as provided in the Agreement, of all the Mortgage Loans and each REO
Property remaining in the Trust Fund; and (iii) the exchange by the Sole
Certificateholder(s) of all the Certificates for all Pooled Mortgage Loans and
each REO Property remaining in the Trust Fund. The Agreement permits, but does
not require, either or both Master Servicers, the Special Servicer or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the 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 1.0% of the Initial Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
parties thereto and the rights of the Certificateholders under the Agreement at
any time by the parties to the Agreement with the consent of the Holders of
Certificates entitled to not less than 66-2/3% of the Voting Rights allocated to
all of the Classes materially affected by the amendment and, if adversely
affected by the amendment, any third-party beneficiary. 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 any REMIC Pool as a REMIC, 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 laws of the
State of New York applicable to agreements negotiated, made and to be performed
entirely in said State, and the obligations, rights and remedies of the Holder
hereof shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on its behalf by the Certificate Registrar.
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely as
Certificate Registrar
By:
--------------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the within-mentioned
Agreement.
Dated:
XXXXX FARGO BANK, N.A.
not in its individual capacity but solely 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
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 Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: ____________________________________________________________
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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-3-8
EXHIBIT B
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
CERTIFICATE ADMINISTRATOR AND INITIAL DEPOSITARY
B-1
[GRAPHIC OMITTED]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
-------------------------------------------
[Name of Issuer]*
Xxxxx Fargo Bank, National Association
-------------------------------------------
[Name of Agent]
December 20, 2004
-------------------------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Commercial Mortgage Pass-Through Certificates
Re: -------------------------------------------------------------------------------------------
Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class A-5, Class A-6, Class X-2,
-------------------------------------------------------------------------------------------
Class A-J
-------------------------------------------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the Securities. Agent shall act as trustee, paying
agent, fiscal agent, or other such agent of Issuer with respect to the
Securities. The Securities have been issued pursuant to a trust indenture,
trust agreement, pooling and servicing agreement or other such document
authorizing the issuance of the Securities dated December 1, 2004 (the
"Document"). See Rider 1
-------------------------------------------
["Underwriter/Placement Agent"]
*All Obligations hereunder of the Issuer will be performed by Bear Xxxxxxx
Commercial Mortgage Securities II Inc. as Depositor or the Depositor will cause
the Issuer to perform such obligations.
distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at
DTC, and to act in accordance with its Rules with respect to the Securities,
Issuer and Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 20, 2004 there
shall be deposited with DTC one or more Security certificates registered in the
name of DTC's nominee, Cede & Co., for each stated maturity of the Securities in
the face amounts set forth on Schedule A hereto, the total of which represents
100% of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
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.
Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND SHALL
CROSS OUT THE OTHER.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant") through
DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase the
Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system to
decrease the Participant's account by a specified number of Securities (a
"Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
-2-
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name of
Cede & Co. for the quantity of Securities evidenced by the Balance Certificate
after the Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (000) 000-0000 or (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
4. In the event of a full or partial redemption, Issuer or Agent
shall send a notice to DTC specifying: (a) the amount of the redemption or
refunding; (b) in the case of a refunding, the maturity date(s) established
under the refunding; and (c) the date such notice is to be distributed to
Security holders (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer or Agent shall
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission for multiple CUSIP numbers (if applicable)
which includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be no fewer than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be directed to DTC's Call Notification Department at (516)
227-4164 or (000) 000-0000. If the party sending the notice does not receive a
telecopy receipt from DTC confirming that the notice has been received, such
party shall telephone (000) 000-0000. Notices to DTC pursuant to this Paragraph,
by mail or by any other means, shall be sent to:
-3-
Manager, Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
5. In the event of an invitation to tender the Securities
(including mandatory tenders, exchanges, and capital changes), notice by Issuer
or Agent to Security holders shall be sent to DTC specifying the terms of the
tender and the Publication Date of such notice. Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business on the business day before
or, if possible, two business days before the Publication Date. Issuer or Agent
shall forward such notice either in a separate secure transmission for each
CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use and timeliness of such notice.) Notices to DTC pursuant to
this Paragraph and notices of other corporate actions by telecopy shall be
directed to DTC's Reorganization Department at (000) 000-0000. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (000) 000-0000. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
6. It is understood that if the Security holders shall at any time
have the right to tender the Securities to Issuer and require that Issuer
repurchase such holders' Securities pursuant to the Document and Cede & Co., as
nominee of DTC, or its registered assigns, as the record owner, is entitled to
tender the Securities, such tenders will be effected by means of DTC's Repayment
Option Procedures. Under the Repayment Option Procedures, DTC shall receive,
during the applicable tender period, instructions from its Participants to
tender Securities for purchase. Issuer and Agent agree that such tender for
purchase may be made by DTC by means of a book-entry credit of such Securities
to the account of Agent, provided that such credit is made on or before the
final day of the applicable tender period. DTC agrees that promptly after the
recording of any such book-entry credit, it will provide to Agent an Agent
Receipt and Confirmation or the equivalent, in accordance with the Repayment
Option Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand
or by a secure means (e.g., legible facsimile transmission, registered or
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business two
business days before the Publication Date. The Publication Date shall be no
fewer than 15 days prior to the expiration date of the applicable tender period.
Such notice shall state whether any partial redemption of the Securities is
scheduled to occur during the applicable optional tender
-4-
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (000) 000-0000. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five, but
no fewer than two, business days prior to such payment date. Such notices, which
shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g., adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000, and receipt of such
notices shall be confirmed by telephoning (000) 000-0000. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
9. Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE
FOLLOWING, AND SHALL CROSS OUT THE OTHER.] [The interest accrual period is
record date to record date.] See Rider 2
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC as
soon as the information is available. Issuer or Agent shall provide such notice
directly to DTC electronically, as previously arranged by Issuer or Agent and
DTC. If electronic transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000 or (000) 000-0000. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (212)
000-0000. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to DTC's Dividend Department as indicated in Paragraph 8.
-5-
11. Interest payments and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such interest payments due Agent, or at
such earlier time as may be required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired to the Dividend Deposit Account number that will be
stamped on the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated notification
of CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (000) 000-0000 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to
each CUSIP number shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at. the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's Repayment
Option Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Reorganization Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (000) 000-0000. If the party sending
the report does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (000) 000-0000.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest or
principal may be sent.
-6-
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal amount
of Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any Participant having Securities credited to its DTC
accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one and the
same instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the compliance of
any transactions in the Securities with the following, as amended from time to
time: (a) any exemptions from registration under the Securities Act of 1933; (b)
the Investment Company Act of 1940; (c) the Employee Retirement Income Security
Act of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (000) 000-0000. Receipt of such requests shall be confinned by
telephoning (000) 000-0000. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time to
time. DTC's Operational Arrangements are posted on DTC's website at
"xxx.XXX.xxx."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
Rider 1, Rider 2, Schedule A and Schedule B
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-8-
NOTES:
-----
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC BELIEVES ACCURATELY DESCRIBE DTC, THE
METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES DISTRIBUTED THROUGH DTC,
AND CERTAIN RELATED MATTERS.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage Securities
Trust 2004-PWR6
By: Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
as Depositor
-------------------------------------------
[Issuer]
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
[Authorized Officer's Signature]
Xxxxx Fargo Bank, National Association
-------------------------------------------
[Agent]
By:________________________________________
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
NOTES:
-----
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC BELIEVES ACCURATELY DESCRIBE DTC, THE
METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES DISTRIBUTED THROUGH DTC,
AND CERTAIN RELATED MATTERS.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage Securities
Trust 2004-PWR6
By: Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
as Depositor
--------------------------------------------------------
[Issuer]
By:
-----------------------------------------------------
[Authorized Officer's Signature]
Xxxxx Fargo Bank, National Association
--------------------------------------------------------
[Agent]
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
BY: /s/ XXXXX X. XXXXXXXX
------------------------------------------
FUNDS SHOULD BE WIRED TO:
THE CHASE MANHATTAN BANK
ABA # 021 000 021
FOR CREDIT TO A/C CEDE & Co.
C/O THE DEPOSITORY TRUST COMPANY
[SELECT APPROPRIATE ACCOUNT]
DIVIDEND DEPOSIT ACCOUNT # 066-026776
REDEMPTION DEPOSIT ACCOUNT # 066.027306
REORGANIZATION DEPOSIT ACCOUNT # 066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
SCHEDULE A
----------
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6
(Describe Issue)
CERTIFICATE INITIAL
PRINCIPAL AMOUNT PASS-THROUGH
CLASS CUSIP NUMBER OR NOTIONAL AMOUNT MATURITY(1) RATE(2)
------------------- ------------------------- ------------------------------- --------------------- -------------------------
Class A-1 07383F W8 7 $66,795,000 January 2009 3.688%
Class A-2 07383F W9 5 $47,691,000 October 2009 4.133%
Class A-3 07383F X2 9 $45,882,000 October 2011 4.355%
Class A-4 07383F X3 7 $125,418,000 December 2011 4.521%
Class A-5 07383F X4 5 $55,780,000 April 2014 4.705%
Class A-6 07383F X5 2 $512,051,000 November 2014 4.825%
Class X-2 07383F X6 0 $1,031,522,000 December 2012 0.732%
Class A-J 07383F X7 8 $69,357,000 December 2014 4.868%
(1) The maturity date in the specified month will be the 11th calendar day
of such month or, if such 11th calendar day is not a business day, then
the next succeeding business day.
(2) Approximate.
10.1
RIDERS
------
1. Bear, Xxxxxxx & Co. Inc, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx Fargo
Brokerage Services, LLC are
2. The interest accrual period for any distribution date will be the
calendar month immediately preceeding the month in which such
distribution date occurs.
10.2
SCHEDULE B
----------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING DTC BOOK-ENTRY-ONLY ISSUANCE
---------------------------------------
(Prepared by DTC--bracketed material may apply only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC 's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $500 million, one certificate
will be issued with respect to each $500 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC, the world's largest depository, is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2 million issues of U.S. and non-U.S. equity, corporate
and municipal debt issues, and money market instrument from over 85 countries
that DTC's participants ("Direct Participants") deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Participants of sales and
other securities transactions in deposited securities through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation
Government Securities Clearing Corporation, MBS Clearing Corporation, and
Emerging Markets Clearing Corporation (NSCC, GSCC, MBSCC, and EMCC, also
subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the
American Stock Exchange LLC, and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as both
U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and
clearing corporations that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly ("Indirect
Participants"). DTC has Standard & Poor's highest rating: AAA. The DTC Rules
applicable to its Participants are on file with the Securities and Exchange
Commission. More information about DTC can be found at xxx.xxxx.xxx.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Direct Participants with DTC are registered in the name of DTC's partnership
nominee, Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices ofsignificant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. For example, Beneficial
Owners of Securities may wish to ascertain that the nominee holding the
Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners, in the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of the
notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of
the Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in such
issue to be redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will
consent or vote with respect to the Securities unless authorized by a Direct
Participant in accordance with DTC's Procedures. Under its usual procedures, DTC
mails an Omnibus Proxy to Issuer as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on
the Securities will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTC's practice is to credit
Direct Participants' accounts, upon DTC's receipt of funds and corresponding
detail information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC[nor its nominee], Agent, or Issuer, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds, distributions, and dividend payments to Cede &
Co. (or such other nominee as may be requested by an authorized representative
of DTC) is the responsibility of Issuer or Agent, disbursement of such payments
to Direct Participants will be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its
Securities purchased or tendered, through its Participant, to
[Tender/Remarketing] Agent, and shall effect delivery of such Securities by
causing the Direct Participant to transfer the Participant's interest in the
Securities, on DTC's records, to [Tender/Remarketing] Agent. The requirement for
physical delivery of Securities in connection with an optional tender or a
mandatory purchase will be deemed satisfied when the ownership rights in the
Securities are transferred by Direct Participants on DTC's records and followed
by a book-entry credit of tendered Securities to [Tender/Remarketing] Agent's
DTC account.]
10. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent. Under such circumstances, in the event that a
successor securities depository is not obtained, Security certificates are
required to be printed and delivered.
11. Issuer may decide to discontinue use of the system of
book-entry-only transfers through DTC (or a successor securities depository), In
that event, Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's
book-entry system has been obtained from sources that Issuer believes to be
reliable, but Issuer takes no responsibility for the accuracy thereof.
[GRAPHIC OMITTED]
Book-Entry-Only Collateralized Mortgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
-------------------------------------------
[Name of Issuer]*
Xxxxx Fargo Bank, National Association
-------------------------------------------
[Name of Agent]
December 20, 2004
-----------------------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Commercial Mortgage Pass-Through Certificates Class X-1, Class B, Class C,
Re: ------------------------------------------------------------------------------------
Class D, Class E, Class F, Class G, Class H, Class J, Class K,
------------------------------------------------------------------------------------
Class L, Class M, Class N, Class P and Class Q Certificates
------------------------------------------------------------------------------------
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the Securities. Agent shall act as trustee, paying
agent, fiscal agent, or other such agent of Issuer with respect to the
Securities. The Securities have been issued pursuant to a trust indenture,
trust agreement, pooling and servicing agreement or other such document
authorizing the issuance of the Securities dated December 1, 2004 (the
"Document"). See Rider 1
--------------------------------
["Underwriter/Placement Agent"]
*All Obligations hereunder of the Issuer will be performed by Bear Xxxxxxx
Commercial Mortgage Securities II Inc. as Depositor or the Depositor will cause
the Issuer to perform such obligations.
distributing the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at
DTC, and to act in accordance with its Rules with respect to the Securities,
Issuer and Agent make the following representations to DTC:
1. Prior to closing on the Securities on December 20, 2004 there
shall be deposited with DTC one or more Security certificates registered in the
name of DTC's nominee, Cede & Co., for each stated maturity of the Securities in
the face amounts set forth on Schedule A hereto, the total of which represents
100% of the principal amount of such Securities. If, however, the aggregate
principal amount of any maturity exceeds $400 million, one certificate shall be
issued with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
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.
Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE FOLLOWING, AND SHALL
CROSS OUT THE OTHER.]
[The Security certificate(s) shall remain in Agent's custody as a
"Balance Certificate" subject to the provisions of the Balance Certificate
Agreement between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it
receives an instruction originated by a DTC participant ("Participant") through
DTC's Deposit/Withdrawal at Custodian ("DWAC") system to increase the
Participant's account by a specified number of Securities (a "Deposit
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it
receives an instruction originated by Participant through the DWAC system to
decrease the Participant's account by a specified number of Securities (a
"Withdrawal Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time)
that day, either approve or cancel the Withdrawal Instruction through the DWAC
system.
-2-
Agent agrees that its approval of a Deposit or Withdrawal
Instruction shall be deemed to be the receipt by DTC of a new reissued or
reregistered certificated Security on registration of transfer to the name of
Cede & Co. for the quantity of Securities evidenced by the Balance Certificate
after the Deposit or Withdrawal Instruction is effected.]
2. Issuer: (a) understands that DTC has no obligation to, and will
not, communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by
holders of the Securities, Issuer or Agent shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall send notice of such record date to DTC no fewer
than 15 calendar days in advance of such record date. Notices to DTC pursuant to
this Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (000) 000-0000 or (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Proxy Unit
Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be no fewer
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to DTC's
Call Notification Department at (000) 000-0000 or (000) 000-0000. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (000) 000-0000. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
-3-
Manager, Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee of
DTC, or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during the
applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or
by a secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender
-4-
period. Notices to DTC pursuant to this Paragraph by telecopy shall be directed
to DTC's Put Bond Unit at (000) 000-0000. If the party sending the notice does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
7. All notices and payment advices sent to DTC shall contain the
CUSIP number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to
the dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five, but
no fewer than two, business days prior to such payment date. Such notices, which
shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g., adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000, and receipt of such
notices shall be confirmed by telephoning (000) 000-0000. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
9. Issuer represents: [NOTE: ISSUER MUST REPRESENT ONE OF THE
FOLLOWING, AND SHALL CROSS OUT THE OTHER.] [The interest accrual period is
record date to record date.] See Rider 2
10. Issuer or Agent shall provide a written notice of interest
payment information, including the stated coupon rate information, to DTC as
soon as the information is available. Issuer or Agent shall provide such notice
directly to DTC electronically, as previously arranged by Issuer or Agent and
DTC. If electronic transmission has not been arranged, absent any other
arrangements between Issuer or Agent and DTC, such information shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000 or (000) 000-0000. If
the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (212)
000-0000. Notices to DTC pursuant to this Paragraph, by mail or by any other
means, shall be sent to DTC's Dividend Department as indicated in Paragraph 8.
-5-
11. Interest payments and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m.
(Eastern Time) on the payment date all such interest payments due Agent, or at
such earlier time as may be required by Agent to guarantee that DTC shall
receive payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the
payment date. Absent any other arrangements between Issuer or Agent and DTC,
such funds shall be wired to the Dividend Deposit Account number that will be
stamped on the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no
later than 12:00 noon (Eastern Time) on the payment date, automated notification
of CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (000) 000-0000 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to
each CUSIP number shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such maturity and redemption payments due Agent, or at such earlier
time as required by Agent to guarantee that DTC shall receive payment in
same-day funds no later than 2:30 p.m. (Eastern Time) on the payment date.
Absent any other arrangements between Issuer or Agent and DTC, such funds shall
be wired to the Redemption Deposit Account number that will be stamped on the
signature page hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the
result of optional tenders for purchase effected by means of DTC's Repayment
Option Procedures shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on
the payment date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment
date all such reorganization payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Reorganization Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders
remittance reports with respect to the Securities. If sent by facsimile
transmission, such reports shall be sent to (000) 000-0000. If the party sending
the report does not receive a telecopy receipt from DTC confirming that the
notice has been received, such party shall telephone (000) 000-0000.
16. DTC may direct Issuer or Agent to use any other number or
address as the number or address to which notices or payments of interest or
principal may be sent.
-6-
17. In the event of a redemption, acceleration, or any other
similar transaction (e.g., tender made and accepted in response to Issuer's or
Agent's invitation) necessitating a reduction in the aggregate principal amount
of Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to Issuer or Agent (at which time DTC will confirm with Issuer or Agent
the aggregate principal amount of Securities outstanding). Under such
circumstances, at DTC's request Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any Participant having Securities credited to its DTC
accounts.
20. Nothing herein shall be deemed to require Agent to advance
funds on behalf of Issuer.
21. This Letter of Representations may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts together shall constitute but one and the
same instrument.
22. This Letter of Representations shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this
Letter of Representations is responsible for confirming that such notice was
properly received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain the compliance of
any transactions in the Securities with the following, as amended from time to
time: (a) any exemptions from registration under the Securities Act of 1933; (b)
the Investment Company Act of 1940; (c) the Employee Retirement Income Security
Act of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
self-regulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit
-7-
at DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (000) 000-0000. Receipt of such requests shall be confirmed by
telephoning (000) 000-0000. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements
stated in DTC's Operational Arrangements, as they may be amended from time to
time. DTC's Operational Arrangements are posted on DTC's website at
"xxx.XXX.xxx."
27. The following rider(s), attached hereto, are hereby
incorporated into this Letter of Representations:
Rider 1, Rider 2, Schedule A, Schedule B and Rule 144A Rider
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-8-
NOTES:
------
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT DTC BELIEVES ACCURATELY DESCRIBE DTC,
THE METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURITIES DISTRIBUTED THROUGH
DTC, AND CERTAIN RELATED MATTERS.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage Securities
Trust 2004-PWR6
By: Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
as Depositor
-------------------------------------------
[Issuer]
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
[Authorized Officer's Signature]
Xxxxx Fargo Bank, National Association
-------------------------------------------
[Agent]
By:________________________________________
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
NOTES:
-----
A. IF THERE IS AN AGENT (AS DEFINED IN THIS LETTER OF REPRESENTATIONS), AGENT AS
WELL AS ISSUER MUST SIGN THIS LETTER. IF THERE IS NO AGENT, IN SIGNING THIS
LETTER ISSUER ITSELF UNDERTAKES TO PERFORM ALL OF THE OBLIGATIONS SET FORTH
HEREIN.
B. SCHEDULE B CONTAINS STATEMENTS THAT LTC BELIEVES ACCURATELY DESCRIBE DTC, THE
METHOD OF EFFECTING BOOK-ENTRY TRANSFERS OF SECURIITIES DISTRIBUTED THROUGH DTC,
AND CERTAIN RELATED MATTERS.
Very truly yours,
Bear Xxxxxxx Commercial Mortgage Securities
Trust 2004-PWR6
By: Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
as Depositor
-------------------------------------------
[Issuer]
By:
----------------------------------------
[Authorized Officer's Signature]
Xxxxx Fargo Bank, National Association
-------------------------------------------
[Agent]
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
[Authorized Officer's Signature]
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
BY: /s/ XXXXX X. XXXXXXXX
----------------------------------
FUNDS SHOULD BE WIRED TO:
THE CHASE MANHATTAN BANK
ABA # 021 000 021
FOR CREDIT TO A/C CEDE & CO.
C/O THE DEPOSITORY TRUST COMPANY
[SELECT APPROPRIATE ACCOUNT]
Dividend Deposit Account # 066-026776
REDEMPTION DEPOSIT ACCOUNT # 066-027306
REORGANIZATION DEPOSIT ACCOUNT # 066-027608
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
-9-
RIDERS
------
1. Bear, Xxxxxxx & Co. Inc, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx Fargo
Brokerage Services, LLC are
2. The interest accrual period for any distribution date will be the
calendar month immediately preceeding the month in which such
distribution date occurs.
SCHEDULE A
----------
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6
(Describe Issue)
CERTIFICATE INITIAL
PRINCIPAL AMOUNT PASS-THROUGH
CLASS CUSIP NUMBER OR NOTIONAL AMOUNT MATURITY(1) RATE(2)
--------------------- --------------- --------------------- ---------------- -----------------
Class X-1 (3) No. 1 07383F X8 6 $1,067,021,986(4)(5) November 2024 0.067%
Class X-1 (6) No. 2 U0743B QK 3 $0(4)(5) November 2024 0.067%
Class B (3) No. 1 07383F X9 4 $33,344,000(5) July 2016 4.945%
Class B (6) No. 2 U0743B QL I $0(5) July 2016 4.945%
Class C (3) No. 1 07383F Y2 8 $10,670,000(5) November 2017 5.119%
Class C (6) No. 2 U0743B QM 9 $0(5) November 2017 5.119%
Class D (3) No. 1 07383F Y3 6 $16,006,000(5) April 2019 5.279%
Class D (6) No. 2 U0743B QN 7 $0(5) April 2019 5.279%
Class E (3) No. I 07383F Y4 4 $10,670,000(5) April 2019 5.406%
Class E (6) No. 2 U0743B QP 2 $0(5) April 2019 5.406%
Class F (3) No. 1 07383F Y5 1 $14,671,000(5) April 2019 5.445%
Class F (6) No. 2 U0743B QQ 0 $0(5) April 2019 5.445%
Class G (3) No. 1 07383F Y6 9 $9,337,000(5) May 2019 5.475%
Class G (6) No. 2 U0743B QR 8 $0(5) May 2019 5.475%
Class H (3) No. 1 07383F Y7 7 $14,671,000(5) May 2019 5.475%
Class H (6) No. 2 U0743B QS 6 $0(5) May 2019 5.475%
Class J (3) No. 1 07383F Y8 5 $2,668,000(5) May 2019 4.672%
Class J (6) No. 2 U0743B QT 4 $0(5) May 2019 4.672%
Class K (3) No. 1 07383F Y9 3 $4,001,000(5) June 2019 4.672%
Class K (6) No. 2 U0743B QU l $0(5) June 2019 4.672%
Class L (3) No. 1 07383E Z2 7 $5,335,000(5) December 2019 4.672%
Class L (6) No. 2 U0743B QV 9 $0(5) December 2019 4.672%
Class M (3) No. 1 07383F Z3 5 $5,335,000(5) April 2021 4.672%
Class M (6) No. 2 U0743B QW 7 $0(5) April 2021 4.672%
Class N (3) No. 1 07383F Z4 3 $4,002,000(5) March 2022 4.672%
Class N (6) No. 2 U0743B QX 5 $0(5) March 2022 4.672%
Class P (3) No. 1 07383F Z5 0 $1,333,000(5) July 2022 4.672%
Class P (6) No. 2 U0743B QY 3 $0(5) July 2022 4.672%
Class Q (3) No. 1 07383F Z6 8 $12,004,986(5) November 2024 4.672%
Class Q (6) No. 2 U0743B QZ 0 $0(5) November 2024 4.672%
(1) The maturity date in the specified month will be the 11th calendar day of
such month or, if such 11th calendar day is not a business day, then the
next succeeding business day.
(2) Approximate.
(3) Rule 144A Securities.
(4) Notional Amount.
(5) The combined principal amount or notional amount, as applicable, of the
Rule 144A global notes and the Regulation S global notes will not exceed
$1,067,021,986 for the Class X-1 Certificates, $33,344,000 for the Class
B Certificates, $10,670,000 for the Class C Certificates, $16,006,000 for
the Class D Certificates, $10,670,000 for the Class E Certificates,
$14,671,000 for the Class F Certificates, $9,337,000 for the Class G
Certificates, $14,671,000 for the Class H Certificates, $2,668,000 for
the Class J Certificates, $4,001,000 for the Class K Certificates,
$5,335,000 for the Class L Certificates, $5,335,000 for the Class M
Certificates, $4,002,000 for the Class N Certificates, $1,333,000 for the
Class P Certificates and $12,004,986 for the Class Q Certificates.
(6) Regulation S Securities.
SCHEDULE B
----------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING DTC BOOK-ENTRY-ONLY ISSUANCE
---------------------------------------
(Prepared by DTC--bracketed material may apply only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $500 million, one certificate
will be issued with respect to each $500 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC, the world's largest depository, is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2 million issues of U.S. and non-U.S. equity, corporate
and municipal debt issues, and money market instrument from over 85 countries
that DTC's participants ("Direct Participants") deposit with DTC. DTC also
facilitates the post-trade settlement among Direct Participants of sales and
other securities transactions in deposited securities through electronic
computerized book-entry transfers and pledges between Direct Participants'
accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation
Government Securities Clearing Corporation, MBS Clearing Corporation, and
Emerging Markets Clearing Corporation (NSCC, GSCC, MBSCC, and EMCC, also
subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the
American Stock Exchange LLC, and the National Association of Securities Dealers,
Inc. Access to the DTC system is also available to others such as both U.S. and
non-U.S. securities brokers and dealers, banks, trust companies, and clearing
corporations that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants"). DTC
has Standard & Poor's highest rating: AAA. The DTC Rules applicable to its
Participants are on file with the Securities and Exchange Commission. More
information about DTC can be found at xxx.xxxx.xxx.
3. Purchases of Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Securities on
DTC's records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. For example, Beneficial
Owners of Securities may wish to ascertain that the nominee holding the
Securities for their benefit has agreed to obtain and transmit notices to
Beneficial Owners, in the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of the
notices be provided directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent
or vote with respect to the Securities unless authorized by a Direct Participant
in accordance with DTC's Procedures. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC[nor its nominee], Agent., or Issuer, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds, distributions, and dividend payments to Cede &
Co. (or such other nominee as may be requested by an authorized representative
of DTC) is the responsibility of Issuer or Agent, disbursement of such payments
to Direct Participants will be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing iits services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry-only
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered to DTC.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
[DTC LOGO OMITTED]
REPRESENTATION; FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
-----------------------------------------------
Class X-1, Class B, Class C, Class D, Class E, Class F,
Class G and Class H Certificates
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule I44A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST
REPRESENT ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
[an issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent. Under any of the aforementioned
circumstances, at DTC's request, Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
------------------------------------
(1) A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with any of the provisions: (a)
of Rule 144A; (b) of other exemptions from registration under the Securities Act
or any other state or federal securities laws; or (c) of the offering documents.
-2-
[DTC LOGO OMITTED]
REPRESENTATIONS FOR RULE 144A SECURITIES--
TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
-----------------------------------------------
Class J, Class K, Class L, Class M, Class N,
Class P and Class Q Certificates
1. Issuer represents that at the time of initial registration in the
name of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities,(1) eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST
REPRESENT ONE of THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
[included within Portal, a Self-Regulatory Organization System approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A) an "SRO
Rule 144A System").]
3. If the Securities are not Investment-Grade Securities, Issuer and
Agent acknowledge that if such Securities cease to be included in an SRO Rule
144A System during any period in which such Securities are Legally or
Contractually Restricted Securities, such Securities shall no longer be eligible
for DTC's services. Furthermore, DTC may discontinue providing its services as
securities depository with respect to the Securities at any time by giving
reasonable notice to Issuer or Agent. Under any of the aforementioned
circumstances, at DTC's request, Issuer and Agent shall cooperate fully with DTC
by taking appropriate action to make available one or more separate certificates
evidencing Securities to any DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
-----------------------
(1) A "Legally Restricted Security" is a security that is a
restricted security, as defined in Rule 144(a)(3). A "Contractually Restricted
Security" is a security that upon issuance and continually thereafter can only
be sold pursuant to Regulation S under the Securities Act, Rule 144A, Rule
144, or in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4 of the Securities Act and not involving
any public offering; provided, however, that once the security is sold
pursuant to the provisions of Rule 144, including Rule 144(k), it will thereby
cease to be a "Contractually Restricted Security." For purposes of this
definition, in order for a depositary receipt to be considered a "Legally or
Contractually Restricted Security," the underlying security must also be a
"Legally or Contractually Restricted Security."
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize that DTC does not in any way
undertake to, and shall not have any responsibility to, monitor or ascertain the
compliance of any transactions in the Securities with any of the provisions: (a)
of Rule 144A; (b) of other exemptions from registration under the Securities Act
or any other state or federal securities laws; or (c) of the offering documents.
-2-
EXHIBIT C-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
---------------------------------------------------------------
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer (in such capacity, a "Master Servicer"),
Xxxxx Fargo Bank, National Association as a master servicer (in such capacity, a
"Master Servicer"), as certificate administrator and as tax administrator, ARCap
Servicing, Inc. as special servicer, ABN AMRO Bank N.V. as fiscal agent and you
as trustee (in such capacity, the "Trustee"), the undersigned as Master Servicer
with respect to the following described Mortgage Loan hereby requests a release
of the Mortgage File (or the portion thereof specified below) held by or on
behalf of you as Trustee with respect to such Mortgage Loan for the reason
indicated below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
____ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that are
required to be credited to the Collection Account pursuant to the
Pooling and Servicing Agreement, have been or will be so credited.
____ 2. Other. (Describe) _________________________________________________
___________________________________________________________________
C-1-1
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten days of our receipt thereof, unless the Mortgage Loan
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.
[ ]
as a Master Servicer
By:
--------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
---------------------------------------------------------------
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc. as depositor, Prudential Asset
Resources, Inc. as a master servicer, Xxxxx Fargo Bank, National Association as
a master servicer, as certificate administrator and as tax administrator, ARCap
Servicing, Inc. as special servicer (in such capacity, the "Special Servicer"),
ABN AMRO Bank N.V. as fiscal agent and you as trustee (in such capacity, the
"Trustee"), the undersigned as Special Servicer with respect to the following
described Mortgage Loan hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by or on behalf of you as Trustee with
respect to such Mortgage Loan for the reason indicated below.
Property Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The 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 days of our receipt thereof (or within such longer
period as we have indicated as part of our reason for the request), 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, or unless the Mortgage Loan has been paid in full or otherwise
liquidated, in which case the Mortgage File (or such
C-2-1
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.
ARCAP SERVICING, INC.
as Special Servicer
By:
--------------------------------
Name:
Title:
C-2-2
EXHIBIT D
FORM OF CERTIFICATE ADMINISTRATOR REPORT
D-1
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
DISTRIBUTION DATE STATEMENT
TABLE OF CONTENTS
================================================================================
STATEMENT SECTIONS PAGE(S)
------------------ -------
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation Detail 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8-10
Mortgage Loan Detail 11
Principal Prepayment Detail 12
Historical Detail 13
Delinquency Loan Detail 14
Specially Serviced Loan Detail 15-16
Modified Loan Detail 17
Liquidated Loan Detail 18
Defeased Loan Detail 19
================================================================================
DEPOSITOR
================================================================================
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Contact: General Information Number
Phone Number: (000) 000-0000
================================================================================
MASTER SERVICER
================================================================================
Prudiential Asset Resources, Inc.
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, XX 00000
Contact: Xxx Xxxxxxx
Phone Number: (000) 000-0000
MASTER SERVICER
================================================================================
Xxxxx Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
xxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx
Xxx Xxxxxxxxx, XX 00000
Contact: Xxxxxxx Xxxxxxx
Phone Number: (000) 000-0000
================================================================================
SPECIAL SERVICER
================================================================================
ARCap Servicing, Inc.
0000 X. XxxXxxxxx Xxxx.
Xxxxxx, XX 00000
Contact: Xxxxx Xxxxxx
Phone Number: (000) 000-0000
================================================================================
This report has been compiled from information provided to Xxxxx Fargo Bank,
N.A. by various third parties, which may include the master servicer, special
servicer and others. Xxxxx Fargo Bank, N.A. has not independently confirmed the
accuracy of information received from these third parties and assumes no duty to
do so. Xxxxx Fargo Bank, N.A. expressly disclaims any responsibility for the
accuracy or completeness of information furnished by third parties.
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 1 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
CERTIFICATE DISTRIBUTION DETAIL
====================================================================================================================================
Realized
Loss/
Pass- Additional Current
Through Original Beginning Principal Interest Prepayment Trust Fund Total Ending Subordination
Class CUSIP Rate Balance Balance Distribution Distribution Premium Expenses Distribution Balance Level(1)
------------------------------------------------------------------------------------------------------------------------------------
A-1 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-5 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-6 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
------------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
====================================================================================================================================
=======================================================================================================
Original Beginning Ending
Pass-Through Notional Notional Interest Prepayment Total Notional
Class CUSIP Rate Amount Amount Distribution Premium Distribution Amount
-------------------------------------------------------------------------------------------------------
X-1 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
X-2 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
=======================================================================================================
(1) Calculated by taking (A) the sum of the ending certificate balance of all
classes less (B) the sum of (i) the ending balance of the designated class and
(ii) the ending certificate balance of all classes which are not subordinate to
the designated class and deviding the result by (A).
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 2 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
CERTIFICATE FACTOR DETAIL
=========================================================================================================
Realized Loss/
Beginning Principal Interest Prepayment Additional Trust Ending
Class CUSIP Balance Distribution Distribution Premium Fund Expenses Balance
---------------------------------------------------------------------------------------------------------
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-6 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
Q 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
=========================================================================================================
=========================================================================
Beginning Ending
Notional Interest Prepayment Notional
Class CUSIP Amount Distribution Premium Amount
-------------------------------------------------------------------------
X-1 0.00000000 0.00000000 0.00000000 0.00000000
X-2 0.00000000 0.00000000 0.00000000 0.00000000
=========================================================================
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 3 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
RECONCILIATION DETAIL
ADVANCE SUMMARY
P&I Advances Outstanding 0.00
Servicing Advances Outstanding 0.00
Reimbursements for Interest on P&I 0.00
Advances paid from general collections
Reimbursements for Interest on Servicing 0.00
Advances paid from general collections
MASTER SERVICING FEE SUMMARY
Current Period Accrued Master Servicing Fees 0.00
Less Master Servicing Fees on Delinquent Payments 0.00
Less Reductions to Master Servicing Fees 0.00
Plus Master Servicing Fees on Delinquent Payments Received 0.00
Plus Adjustments for Prior Master Servicing Calculation 0.00
Total Master Servicing Fees Collected 0.00
CERTIFICATE INTEREST RECONCILIATION
-----------------------------------------------------------------------------------------------------------------------------------
Accrued Net Aggregate Distributable Distributable Additional Remaining Unpaid
Class Certificate Prepayment Certificate Certificate Interest Trust Fund Interest Distributable
Interest Interest Shortfall Interest Adjustment Expenses Distribution Certificate Interest
-----------------------------------------------------------------------------------------------------------------------------------
A-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-5 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
A-J 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X-1 0.00 0.00 0.00 0.00 0.00 0.00 0.00
X-2 0.00 0.00 0.00 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Q 0.00 0.00 0.00 0.00 0.00 0.00 0.00
-----------------------------------------------------------------------------------------------------------------------------------
Totals 0.00 0.00 0.00 0.00 0.00 0.00 0.00
===================================================================================================================================
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 4 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
OTHER REQUIRED INFORMATION
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggergate Excess Liquidation Proceeds Balance 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Primary Servicing Fee 0.00
Aggregate Paying Agent Fee 0.00
Aggregate Trust Fund Expenses 0.00
Appraisal Reduction Amount
-----------------------------------------------------
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
-----------------------------------------------------
-----------------------------------------------------
Total
=====================================================
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 5 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
CASH RECONCILIATION DETAIL
--------------------------------------------------------------------------------------
TOTAL FUNDS COLLECTED
INTEREST:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
-------
TOTAL INTEREST COLLECTED 0.00
PRINCIPAL:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
-------
TOTAL PRINCIPAL COLLECTED 0.00
OTHER:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
-------
TOTAL OTHER COLLECTED: 0.00
-------
TOTAL FUNDS COLLECTED 0.00
=======
--------------------------------------------------------------------------------------
TOTAL FUNDS DISTRIBUTED
FEES:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
-------
TOTAL FEES 0.00
ADDITIONAL TRUST FUND EXPENSES:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
-------
TOTAL ADDITIONAL TRUST FUND EXPENSES 0.00
INTEREST RESERVE DEPOSIT 0.00
PAYMENTS TO CERTIFICATEHOLDERS & OTHERS:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
-------
TOTAL PAYMENTS TO CERTIFICATEHOLDERS & OTHERS 0.00
-------
TOTAL FUNDS DISTRIBUTED 0.00
=======
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 6 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
RATINGS DETAIL
------------------------------------------------------------------------------------
Original Ratings Current Ratings (1)
Class CUSIP -------------------------- -------------------------------
Fitch Xxxxx'x S&P Fitch Xxxxx'x S&P
------------------------------------------------------------------------------------
X-0
X-0
X-0
X-0
X-0
X-0
X-X
X-1
X-2
B
C
D
E
F
G
H
J
K
L
M
P
Q
------------------------------------------------------------------------------------
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain rating
information, if any, from such rating agency. The current ratings were obtained
directly from the applicable rating agency within 30 days of the payment date
listed above. The ratings may have changed since they were obtained. Because the
ratings may have changed, you may want to obtain current ratings directly from
the rating agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 7 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
SCHEDULED BALANCE
--------------------------------------------------------------------------------
% of
Scheduled # of Scheduled Agg. WAM Weighted
Balance loans Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
================================================================================
STATE (3)
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
State Props. Balance Bal. (2) WAC Avg DSCR (1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
================================================================================
See footnotes on last page of this section.
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 8 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
--------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
DEBT SERVICE COVERAGE RATIO
--------------------------------------------------------------------------------
% of
Debt Service # of Scheduled Agg. WAM Weighted
Coverage Ratio loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
NOTE RATE
--------------------------------------------------------------------------------
% of
Note # of Scheduled Agg. WAM Weighted
Rate loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
PROPERTY TYPE (3)
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
Property Type Props. Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
SEASONING
--------------------------------------------------------------------------------
% of
# of Scheduled Agg. WAM Weighted
Seasoning loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
See footnotes on last page of this section.
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 9 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
--------------------------------------------------------------------------------
CURRENT MORTGAGE LOAN AND PROPERTY STRATIFICATION TABLES
ANTICIPATED REMAINING TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
% of
Anticipated Remaining # of Scheduled Agg. WAM Weighted
Term (2) loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING AMORTIZATION TERM (ARD AND BALLOON LOANS)
--------------------------------------------------------------------------------
% of
Remaining Amortization # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
REMAINING STATED TERM (FULLY AMORTIZING LOANS)
--------------------------------------------------------------------------------
% of
Remaining Stated # of Scheduled Agg. WAM Weighted
Term loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
AGE OF MOST RECENT NOI
--------------------------------------------------------------------------------
% of
Age of # of Scheduled Agg. WAM Weighted
Most Recent loans Balance Bal. (2) WAC Avg DSCR(1)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Totals
--------------------------------------------------------------------------------
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases the most recent
DSCR provided by the Servicer is used. To the extent that no DSCR is provided by
the Servicer, information from the offering document is used. The Paying Agent
makes no representations as to the accuracy of the data provided by the borrower
for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the
term from the current month to the earlier of the Anticipated Repayment Date,
if applicable, and the maturity date.
(3) Data in this table was calculated by allocating pro-rata the current
loan information to the properties based upon the Cut-off Date balance of
each property as disclosed in the offering document.
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 10 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
----------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN DETAIL
----------------------------------------------------------------------------------------------------------------
Anticipated Neg.
Loan Property Interest Principal Gross Repayment Maturity Amort
Number ODCR Type (1) City State Payment Payment Coupon Date Date (Y/N)
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number Balance Balance Date Date Amount (2) (3)
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Totals
---------------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Authorization Change
3 - Principal Write-Off
4 - Combination
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 11 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
-----------------------------------------------------------------------------------------------------------------------------
PRINCIPAL PREPAYMENT DETAIL
-----------------------------------------------------------------------------------------------------------------------------
Principal Prepayment Amount Prepayment Penalties
Offering Document ------------------------------------- ------------------------------------------------
Loan Number Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Charge
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 12 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
-----------------------------------------------------------------------------------------------------------------------------------
HISTORICAL DETAIL
-----------------------------------------------------------------------------------------------------------------------------------
Delinquencies
-----------------------------------------------------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days or More Foreclosure REO Modifications
Date # Balance # Balance # Balance # Balance # Balance # Balance
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Prepayments Rate and Maturities
--------------- ------------------------------- --------------------------------
Distribution Curtailments Payoff Next Weighted Avg.
Date # Balance # Balance Coupon Remit WAM
------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
Note: Foreclosure and REO Totals are excluded from the delinquencies aging
categories.
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 13 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
----------------------------------------------------------------------------------------------------------------------------------
DELINQUENCY LOAN DETAIL
----------------------------------------------------------------------------------------------------------------------------------
Offering # of Current Outstanding Status of Resolution
Document Months Paid Through P&I P&I Mortgage Strategy Servicing
Loan Number Cross-Reference Delinq. Date Advances Advances Loan (1) Code (2) Transfer Date
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------
Actual Outstanding
Foreclosure Loan Servicing Bankruptcy REO
Loan Number Date Balance Advances Date Date
----------------------------------------------------------------------------------
----------------------------------------------------------------------------------
Totals
----------------------------------------------------------------------------------
(1) Status of Mortgage Loan
---------------------------
A - Payments Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Loan)
0 - Current 7 - Foreclosure
1 - One Month Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 14 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
-----------------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOAN DETAIL - PART 1
-----------------------------------------------------------------------------------------------------------------------------
Offering Servicing Resolution Net
Distribution Loan Document Transfer Strategy Scheduled Property Interest Actual Operating
Date Number Cross-Reference Date Code (1) Balance Type (2) State Rate Balance Income
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------
Remaining
Distribution NOI Note Maturity Amortization
Date Date DSCR Date Date Term
--------------------------------------------------------------------
--------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 15 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
------------------------------------------------------------------------------------------------------------------------------------
SPECIALLY SERVICED LOAN DETAIL - PART 2
------------------------------------------------------------------------------------------------------------------------------------
Offering Resolution Site
Distribution Loan Document Strategy Inspection Appraisal Appraisal Other REO
Date Number Cross-Reference Code (1) Date Phase 1 Date Date Value Property Revenue Comment
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 16 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
------------------------------------------------------------------------------------------------------------------------------------
MODIFIED LOAN DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Offering
Loan Document Pre-Modification
Number Cross-Reference Balance Modification Date Modification Description
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Totals
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 17 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
----------------------------------------------------------------------------------------------------------------------
LIQUIDATED LOAN DETAIL
----------------------------------------------------------------------------------------------------------------------
Final Recovery Offering Gross Proceeds
Loan Determination Document Appraisal Appraisal Actual Gross as a % of
Number Date Cross-Reference Date Value Balance Proceeds Actual Balance
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Current Total
----------------------------------------------------------------------------------------------------------------------
Cumulative Total
----------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Aggregate Net Net Proceeds Repurchased
Loan Liquidation Liquidation as a % of Realized by Seller
Number Expenses* Proceeds Actual Balance Loss (Y/N)
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Current Total
------------------------------------------------------------------------------------
Cumulative Total
------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 18 of 19
-----------------------------------------
For Additional Information please contact
[XXXXX FARGO LOGO OMITTED] CTSLink Customer Service
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES II INC. (000) 000-0000
XXXXX FARGO BANK, N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Reports Available on the World Wide Web
CORPORATE TRUST SERVICES SERIES 2004-PWR6 @ xxx.xxxxxxx.xxx/xxxx
0000 XXX XXXXXXXXX XXXX -----------------------------------------
XXXXXXXX, XX 00000-0000 PAYMENT DATE: 01/11/2005
RECORD DATE: 12/31/2004
-----------------------------------------------------------------------------------------------------------------------
DEFEASED LOAN DETAIL
-----------------------------------------------------------------------------------------------------------------------
Offering Document Ending Scheduled Maturity
Loan Number Cross-Reference Balance Date Note Rate Defeasance Status
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Totals
-----------------------------------------------------------------------------------------------------------------------
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park DL - Defeasance Loan
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed In Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Defeasance Code
-------------------
P - Partial Defeasance
F - Full Defeasance
N - No Defeasance Occured
X - Defeasance not Allowable
--------------------------------------------------------------------------------
Copyright, Xxxxx Fargo Bank, N.A. Page 19 of 19
EXHIBIT E-1
FORM OF ARCAP INTEREST ON ADVANCE RECONCILIATION REPORT
The report shall set forth, for each Pooled Mortgage Loan for which any
Advance Interest has been paid, (i) the amount of Advance Interest, (ii) the
amount of Default Charges available to offset such Advance Interest (per Section
3.28 of the Pooling and Servicing Agreement) and (iii) the net amount of such
Advance Interest giving effect to such offset.
E-1-1
EXHIBIT E-2
FORM OF ARCAP MORTGAGE LOANS DELINQUENT REPORT
MORTGAGE LOANS DELINQUENCY REPORT
As of Month End ______________
Deal Name
OUTSTANDING OUTSTANDING FIRST
LOAN LOAN PRO-SUPP PROPERTY ENDING SCHEDULED LATE UNALLOCATED P & I SERVICING PAID DUE GRACE
NBR OFFICER ID NAME SCH.PRIN.BAL. PAYMENT FEES SUSPENSE ADVANCES ADVANCES TO DATE DATE DAYS COMMENTS
SPECIALLY SERVICED LOANS
------------------------
E-2-1
EXHIBIT X-0
XXXX XX XXXXX X&X ADVANCES AS OF REMITTANCE DATE REPORT
------------------------
[DEAL NAME] ADVANCES DETAIL REPORT
------------------------
[DEAL SERIES]
DISTRIBUTION DATE: [INSERT]
[TO BE COMPLETED AS OF MASTER
SERVICER REMITTANCE DATE]
------------------------------------------------------------------------------------------------------------------------------------
GROSS
PRINCIPAL INTEREST NET SERVICING TOTAL ACTUAL
LOAN TAB BORROWERS PAID TO ADVANCE ADVANCE ADMIN FEE ASER INTEREST T&I ADVANCE INTEREST ADVANCE PRINCIPAL
NUMBER NO NAME DATE BALANCE BALANCE PORTION AMOUNT ADVANCE ADVANCE BALANCE ON ADVANCES BALANCE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
TOTALS
=============================================================================================================================
E-3-1
EXHIBIT E-4
FORM OF ARCAP REALIZED LOSS REPORT
[The form is identical to the form that appears as Exhibit E-8
to this Agreement.]
E-4-1
EXHIBIT E-5
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
ARCap Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, no dashes, no underscores, etc.
The Prospectus Loan I.D. should have five leading characters, a decimal point,
and the Mortgaged Property # (1,2,3,etc).
The Statement Types are: OS Operating Statement (PDF or TIF format)
OSAR Operating Statement Analysis Report & NOI ADJ
Worksheet (Excel Format named individually,
not rolling format)
FS Borrower Financial Statement (PDF or TIF)
RR Rent Roll (Excel or PDF or TIF)
PI Property Inspection (Excel format)
HS Healthcare Survey
FR Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 2002 or
2003 or 2004.
The Months Covered by the Statement should range from 01 to 12.
E-5-1
EXHIBIT E-6
CONTROLLING CLASS CERTIFICATEHOLDER'S REPORTS CHECKLIST
---------------------------------------------------------------------------------------------------------------------
Information Format Frequency
---------------------------------------------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
---------------------------------------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF Quarterly per Section 3.12/4.02
of PSA
---------------------------------------------------------------------------------------------------------------------
Other Financials as required by Mortgage Actual PDF/TIF Per Section 3.12/4.02 of PSA
Loan Documents
---------------------------------------------------------------------------------------------------------------------
Within 30 days of annual or
Property Inspection Actual PDF/TIF other inspection per Section
3.12 of PSA
---------------------------------------------------------------------------------------------------------------------
P&I Advances as of Remittance Date Monthly Excel Master Servicer Remittance Date
Report(1)
---------------------------------------------------------------------------------------------------------------------
Mortgage Loans Delinquent Report (2) Monthly Excel End of each month per Section
4.02 of PSA
---------------------------------------------------------------------------------------------------------------------
Interest on Advance Reconciliation Report Monthly Excel Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Setup File (Issuer/Trustee/Servicer) CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
Operating Statement Analysis Report CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
Documentation Exceptions Report (Trustee) Quarterly Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------------------------------------
Footnotes:
(1) On the Master Servicer Remittance Date following the Determination Date for
the related Distribution Date, a list of all Pooled Mortgage Loans delinquent
and requiring a P&I Advance as of the P&I Advance Date.
(2) As of the last day of the month (30th), for all delinquencies reported in FN
1 above, a list of all Pooled Mortgage Loans which remain delinquent for such
distribution period (along with the number of days delinquent) accompanied with
any reason, in the applicable Master Servicer's opinion, for the Pooled Mortgage
Loans continued delinquency, along with an explanation of the applicable Master
Servicer's attempts to cure.
E-6-1
The Special Servicer requests that the above information be organized in
ascending Prospectus Loan I.D. order and forwarded on each of the above-listed
dates via e-mail to the following addresses:
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 341 (972) 580-1688 ext. 323
E-6-2
EXHIBIT E-7
MONTHLY ADDITIONAL REPORT ON RECOVERIES AND REIMBURSEMENTS
------------------------------------------------------------------------------------------------------------------------------------
MONTHLY ADDITIONAL REPORT ON RECOVERIES AND REIMBURSEMENTS Example
LOAN BY LOAN
APPLICABLE TO WORKOUT DELAYED REIMBURSEMENT AMOUNTS AND NONRECOVERABLE ADVANCES
DISTRIBUTION DATE: 11/15/2003
Ip48 new new new new new new calc new calc calc
TRUST RECORDS G H I J K L M N
------------------------------------------------------------------------------------------------------------------------------------
UNREIMBURSED ADVANCES REIMBURSED ADVANCES
---------------------------------------------------
PRINCIPAL COLLECTIONS INTEREST COLLECTIONS
DEEMED
MODIFICATION NON- INITIAL AMOUNTS
PROSPECTUS SERVICER DATE (IF RECOVERABLE TYPE INITIAL ADVANCE REIMBURSE STILL
ID LOAN # APPLICABLE) DATE ADVANCE AMOUNT INTEREST MENT DATE CURRENT CUMULATIVE CURRENT CUMULATIVE DUE *
------------------------------------------------------------------------------------------------------------------------------------
10 xxx 11/1/2003 na P & I 50,000 3,000 11/12/2003 45,000 45,000 0 0 8,000
11 xxx 11/1/2003 11/4/2003 P & I 50,000 3,000 11/12/2003 53,000 53,000 0 0 0
12 xxx na 11/4/2003 Legal 10,000 500 11/12/2003 0 0 10,500 10,500 0
------------------------------------------------------------------------------------------------------------------------------------
totals
*Unreimbursed(in process), N=(G + H) - (K + M)
1 2 3 4 5 6 7 8 9 10 11 12 13
------------------------------------------------------------------------------------------------------------------------------------
new new calc new new new new Ip36 Ip 11
BORROWER INFORMATION
------------------------------------------------------------------------------------------------------------------------------------
CURRENT IF NONRECOVERABLE
AMOUNTS ADVANCES
UNLIQUIDATED PAID BY UNLIQUIDATED REIMBURSED FROM
ADVANCES BORROWER OR ADVANCES IS IT STILL PRINCIPAL, INTEREST
(BEGINNING PROCEEDS OF (ENDING RECOVERABLE OR REALIZED LOSS SHORTFALL ACTUAL LOAN ARD DATE/
BALANCE) RELATED LOAN BALANCE) NONRECOVERABLE? AMOUNT TO TRUST COMMENTS BALANCE MATURITY DATE
------------------------------------------------------------------------------------------------------------------------------------
53,000 0 53,000 R 0 0 ModificationP & $5,053,000 Nov-07
rolled into loan
balance
0 0 0 N 53,000 0 Modification- $5,000,000 Nov-07
forgiveness of
debt
0 0 0 N 0 10,500 Legal expense- $2,000,000 Nov-07
interest shortfall
to trust
------------------------------------------------------------------------------------------------------------------------------------
14 15 16 17 18 19 20 21 22
E-7-1
EXHIBIT E-8
REALIZED LOSS FORM
------------------------------------------------------------------------------------
REALIZED LOSS FORM (PREPARED BY Instructions to Items that
SPECIAL AND MASTER SERVICERS) MS and Trustee affect CH*
--------------------------------------------------------------------------------------------------------------------
PORTFOLIO NAME
SERVICER ID:
MAP TEMPLATE
FIELD TO LOAN
PERIODIC FIELD: (APPLICABLE TO FINAL RECOVERY DETERMINATION/REALIZED LOSS) DATE: 4/15/2004
---------------------------------------------------------------------------------------
TOTAL FUNDS RECEIVED ON CORRECTED MORTGAGE LOAN AND
SPECIALLY SERVICED MORTGAGE LOAN:
Sales Proceeds or Payoff Proceeds 3,600,000.00
Insurance Proceeds -
Suspense Balance -
Tax & Insurance Reserve Balance -
- Other Reserve Balance -
- Other Proceeds -
------------
- TOTAL FUNDS RECEIVED 3,600,000.00
- LESS: LIQUIDATION EXPENSES
- Broker Fees 95,105.19
- Other Selling Expenses -
------------
- 95,105.19
------------
L45 PROCEEDS AVAILABLE 3,504,894.91
---------------------------------------------------------------------------------------
1) AMOUNTS DUE SERVICERS AND TRUSTEE:
INCLUDES CURRENT PERIOD AND ACCRUED SERVICING FEES
AND OTHER FEES:
(EXCLUDES ITEMS FROM ADDITIONAL TRUST FUND EXPENSES)
L109 A Liquidation Fee to SS on SS loan 35,048.95
L108 B Workout Fee on Corrected Mtg. loan -
New1 C Master Servicing Fees -
New1 D Special Servicing Fees -
New1 E Trustee Fees -
New1 F Other Fees -
L37 G P & I Advances (net) -
L103 H Interest on Advances- P & I 12,514.30
L38 I T&I Advances -
L103 J Interest on Advances- T&I -
L39 K Servicing Advances (other Expense Advance oustanding) -
L103 L Interest on Advances-Servicing Advances -
- TOTAL 47,563.25
2) AMOUNTS HELD BACK FOR FUTURE PAYMENT:
place in suspense until
legal final invoice
New A Other Unpaid Fees and expenses 3,000.00 received
New B Other amounts -
- TOTAL 3,000.00
3) ACCRUED INTEREST (CURRENT PERIOD AND PRIOR INTEREST
SHORTFALLS)
L23 A Current Scheduled Interest (net of fees) 36,863.48 x
L35 B Cumulative Aser Amount 50,000.00 x
New2 C Deemed non-recoverable interest (prior shortfall) 695,006.76 x
New2 D Deemed non-recoverable interest (paid from trust
principal) - x
New2 E Other unpaid interest - x
------------
- TOTAL 781,870.24 x
4) ADDITIONAL TRUST FUND EXPENSES (PRIOR INTEREST
SHORTFALLS OR PRINCIPAL LOSSES)
New3 A Special Servicing Fees 2,000.00 x
New3 B Work Out fees (Corrected Mortgage Loan) - x
New3 C Interest on Advances 15,000.00 x
New3 D Other expenses: (Inspection by SS,
Environmental, legal etc.) - x
New3 E Unliquidated Advances (work-out delayed
reimb.paid from trust-principal) - x
New3 F Deemed Non-Recoverable Principal
Advances (paid from trust-Principal) 1,282,322.37 x
New3 G Deemed Non-Recoverable Servicing
Advances (paid from trust-Principal) 2,000,000.00 x
- TOTAL 3,299,322.37 x
------------
L46 TOTAL #1 THROUGH #4 - LIQUIDATION EXPENSES 4,131,755.86
------------
-------------
L27 NET PROCEEDS (PROCEEDS AVAILABLE LESS #1 THRU #4) (626,861.05) x
-------------
(Proceeds available for Principal Distribution) (If
negative, no proceeds available for distribution)
-------------
L6 BEGINNING SCHEDULED PRINCIPAL BALANCE 5,833,393.01 x
-------------
-------------
REALIZED LOSS CALCULATION 6,460,254.06 x
-------------
-------------
L47 REALIZED LOSS TO TRUST (PER DEFINITION IN PSA) 5,833,393.01
---------------------------------------------------------------------------------------
New4 IF REALIZED LOSS > BEGINNING SCHEDULED PRINCIPAL 626,861.05
BALANCE (IF POSITIVE NUMBER)
---------------------------------------------------
(REFER TO PSA FOR ALLOCATION) (OPTIONAL)
- A Amounts allocated to Interest
shortfall--Current Period -
- B Amount applied to Interest shortfall or 626,861.05
principal loss--Prior Period
- C Amount to Realized Loss > than STB, -
allocate to current period principal
- D Other method per PSA
-----------------------------------------------------------------------------------
ADDITIONAL PROCEEDS RECEIVED AFTER FINAL RECOVERY DETERMINATION/REALIZED LOSS
AMOUNTS DISTRIBUTED AS REIMBURSEMENT OF UNFUNDED PRINCIPAL BALANCE x
REDUCTIONS (PRIOR REALIZED LOSSES) (OPTIONAL)
Class that received
Date Description Amount funds (optional)
---- ----------- ------ -------------------
New5 5/8/2004 2000
0
subtotal Additional Proceeds 2,000.00
---------------------------------------------------------------------------------------
ADDITIONAL EXPENSES AFTER FINAL RECOVERY DETERMINATION/REALIZED
LOSS ALLOCATED TO INTEREST SHORTFALLS
Class that received
Date Description Amount funds (optional) x
---- ----------- --------------------
New5 5/8/2004 Legal expense 1500
0
subtotal Additional Expenses 1,500.00
-------------
CUMULATIVE NET ADJUSTMENT TO TRUST 500.00
---------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------
Signature and Title of Servicing Officer Date
CC: SPECIAL SERVICER, MASTER SERVICER, TRUSTEE, ATTACHMENT TO DISTRIBUTION STATEMENT
---------------------------------------------------------------------------------------
E-8-1
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of December 21, 2004 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
----------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
______________ (the "Transferor") to _________________ (the "Transferee") of the
captioned Certificates (the "Transferred Certificates") pursuant to Section 5.02
of the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of December 1, 2004 among Bear Xxxxxxx Commercial Mortgage Securities
II Inc., as Depositor, Prudential Asset Resources, Inc., as a Master Servicer,
Xxxxx Fargo Bank, National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, ARCap Servicing, Inc., as Special
Servicer, LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V.,
as Fiscal Agent. All capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, and for the benefit of the Trustee and the Depositor,
that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited
F-1-1
any offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in a Transferred Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in any
manner, (d) made any general solicitation with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security by means of general advertising or in any other manner, or (e) taken
any other action with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) hereof) would constitute a
distribution of the Transferred Certificates under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the
Transferred Certificates a violation of Section 5 of the Securities Act or any
state securities laws, or would require registration or qualification of the
Transferred Certificates pursuant to the Securities Act or any state securities
laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-1-2
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of December 21, 2004 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional
F-2A-1
Buyer, and understands that such Transferred Certificates may be resold, pledged
or transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Nominee Acknowledgment
----------------------
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
----------------------------------------
(Nominee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2A-2
ANNEX 1 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee").
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 [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $______________________(1) in securities
(other than the excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in accordance
with Rule 144A) and (ii) the Transferee satisfies the criteria in the category
marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ 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 Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of 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
--------------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2A-3
institution, which is supervised and examined by a state or federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and not
more than 18 months preceding such date of sale in the case of a foreign
savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of risks underwritten by insurance companies and which is subject to
supervision by the insurance commissioner or a similar official or agency
of a State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and maintained by
a State, its political subdivisions, or any agency or instrumentality of
the State or its political subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee did not
include (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
F-2A-4
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by any Person, the Transferee used the
cost of such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
F-2A-5
ANNEX 2 TO EXHIBIT F-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificates (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
___ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal
year (such amount being calculated in accordance with Rule 144A).
___ The Transferee is part of a Family of Investment Companies which owned in
the aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
F-2A-6
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
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
sales to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be purchasing the Transferred Certificates
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant to
which the Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
IF AN ADVISER:
Print Name of Transferee
Date:
--------------------------------
F-2A-7
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of December 21, 2004 (the "Closing
Date") of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
[through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Company ("DTC") and the Depository Participants)] in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Trustee and the Depositor that:
1. Transferee is acquiring the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in connection with
any distribution thereof, in whole or in part, in any manner which would violate
the Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
F-2B-1
2. Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee, Certificate Administrator or the Certificate Registrar is obligated
so to register or qualify the Transferred Certificates, and (c) neither the
Transferred Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in a transaction which is exempt
from such registration and qualification and the Certificate Registrar has
received (A) a certificate from the prospective transferor substantially in the
form attached as Exhibit F-1 to the Pooling and Servicing Agreement and a
certificate from the prospective transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Pooling and Servicing
Agreement; or (B) an Opinion of Counsel satisfactory to the Certificate
Administrator to the effect that, among other things, the transfer may be made
without registration under the Securities Act, together with the written
certification(s) as to the facts surrounding the transfer from the prospective
transferor and/or prospective transferee upon which such Opinion of Counsel is
based.
3. The Transferee understands that it may not sell or otherwise transfer
the Transferred Certificates, any security issued in exchange therefor or in
lieu thereof or any interest in the foregoing 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 Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES OR BLUE
SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN THE UNITED STATES, ITS
TERRITORIES AND POSSESSIONS. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH OFFERS
AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO
ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING
THIS CERTIFICATE
F-2B-2
OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF,
OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN
OR ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred 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.
F-2B-3
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the Nominee
Acknowledgment below.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the Transferred
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Transferee identified above, for whom the undersigned is acting
as nominee.
----------------------------------------
(Nominee)
By:
------------------------------------
Name:
Title:
F-2B-4
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of December 21, 2004 (the "Closing
Date") of $[__________] (the "Transferred Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc., as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer, Xxxxx Fargo Bank
National Association, as a master servicer, as certificate administrator and as
tax administrator, ARCap Servicing, Inc., as special servicer, LaSalle Bank
National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as
fiscal agent. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, the Trustee and the Certificate Registrar
that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the Transfer to it of
the Transferor's interest in the Transferred Certificates is being made in
reliance on Rule 144A. The Transferee is acquiring such interest in the
Transferred Certificates for its own account or for the account of a
Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee, Certificate
F-2C-1
Administrator or the Certificate Registrar is obligated so to register or
qualify the Transferred Certificates, and (c) neither the Transferred
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (i) registered pursuant
to the Securities Act and registered or qualified pursuant any applicable
state securities laws or (ii) sold or transferred in transactions which are
exempt from such registration and qualification and the Transferor desiring
to effect such transfer has received either (A) a certificate from the
prospective transferee substantially in the form attached either as Exhibit
F-2C to the Pooling and Servicing Agreement or (B) an opinion of counsel to
the effect that the transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate, any security issued in exchange
therefor or in lieu thereof or any interest in the foregoing except in
compliance with the provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed, and that each
Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES OR BLUE SKY LAWS OF ANY STATE OR OTHER JURISDICTION WITHIN
THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS. ANY RESALE,
PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
IF OFFERS AND SALES OF THIS CERTIFICATE ARE MADE IN ANY JURISDICTION
OUTSIDE OF THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, SUCH
OFFERS AND SALES MUST COMPLY WITH ALL APPLICABLE LAWS OF SUCH
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT
THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02
OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
F-2C-2
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and any distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, and (e) all related matters, that
it has requested.
Very truly yours,
----------------------------------------
(Transferee)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-2C-3
ANNEX 1 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Bear Xxxxxxx Commercial Mortgage
Securities II Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (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] [each of the Transferee's equity owners] owned
and/or invested on a discretionary basis $______________________(1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in the
category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ 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 Transferred Certificates 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
----------------
(1) Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
F-2C-4
having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a date
not more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. 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 (i) securities of issuers that are affiliated with such Person,
(ii) securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any such Person, the
Transferee used the cost of such securities to such Person, unless such Person
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.
F-2C-5
Further, in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
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 acquisition of any interest in of
the Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such acquisition. 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 acquisition, promptly after they become
available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
(Transferee)
By:
------------------------------------
Name:
Title:
Date:
F-2C-6
ANNEX 2 TO EXHIBIT F-2C
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Bear Xxxxxxx Commercial Mortgage
Securities II Inc. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of the
entity acquiring interests in the Transferred Certificates (the "Transferee")
or, if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because the Transferee is part of a Family of Investment Companies (as defined
below), is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment
F-2C-7
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
Transferor and other parties related to the Transferred Certificates are relying
and will continue to rely on the statements made herein because one or more
Transfers to the Transferee will be in reliance on Rule 144A.
____ ____ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is acquiring any interest in the Transferred Certificates
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 acquisition of any interest in the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
(Transferee or Adviser)
By:
------------------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
F-2C-8
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of December 21, 2004 (the "Closing
Date") of $[__________] (the "Transferred Certificates")
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of December 1, 2004, among Bear Xxxxxxx Commercial
Mortgage Securities II Inc., as depositor, Prudential Asset Resources, Inc., as
a master servicer, Xxxxx Fargo Bank, National Association, as a master servicer,
as certificate administrator and as tax administrator, ARCap Servicing, Inc., as
special servicer, LaSalle Bank National Association, as trustee, and ABN AMRO
Bank N.V., as fiscal agent. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to and
agrees with you, and for the benefit of the Depositor, that the Transferee is
not a United States Securities Person.
For purposes of this certification, "United States Securities Person" means
(i) any natural person resident in the United States, (ii) any partnership or
corporation organized or incorporated under the laws of the United States, (iii)
any estate of which any executor or administrator is a United States Securities
Person, other than any estate of which any professional fiduciary acting as
executor or administrator is a United States Securities Person if an executor or
administrator of the estate who is not a United States Securities Person has
sole or shared investment discretion with respect to the assets of the estate
and the estate is governed by foreign law, (iv) any trust of which any trustee
is a United States Securities Person, other than a trust of which any
professional fiduciary acting as trustee is a United States Securities Person if
a trustee who is not a United States Securities Person has sole or shared
investment discretion with respect to the trust assets and no beneficiary of the
trust (and no settlor if the trust is revocable) is a United States Securities
Person, (v) any agency or branch of a foreign entity located in the United
States,
F-2D-1
unless the agency or branch operates for valid business reasons and is engaged
in the business of insurance or banking and is subject to substantive insurance
or banking regulation, respectively, in the jurisdiction where located, (vi) any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a United
States Securities Person, (vii) any discretionary account or similar account
(other than an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States, other than one
held for the benefit or account of a non-United States Securities Person by a
dealer or other professional fiduciary organized, incorporated or (if an
individual) resident in the United States, or (viii) any partnership or
corporation if (a) organized or incorporated under the laws of any foreign
jurisdiction and (b) formed by a United States Securities Person principally for
the purpose of investing in securities not registered under the United States
Securities Act of 1933, as amended (the "Securities Act"), unless it is
organized or incorporated, and owned, by "accredited investors" (as defined in
Rule 501(a)) under the Securities Act, who are not natural persons, estates or
trusts; provided, however, that the International Monetary Fund, the
International Bank for Reconstruction and Development, the Inter-American
Development Bank, the Asian Development Bank, the African Development Bank, the
United Nations and their agencies, affiliates and pension plans, any other
similar international organizations, their agencies, affiliates and pension
plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, _____
By:
------------------------------------
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
F-2D-2
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6 (the
"Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of December 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities II Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer, Xxxxx Fargo
Bank, National Association, as a master servicer, as certificate administrator
and as tax administrator, ARCap Servicing, Inc., as special servicer, LaSalle
Bank National Association, as trustee, and ABN AMRO Bank N.V., as fiscal agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Depositor, that:
1. The Transferor is the lawful owner of the right to receive the Excess
Servicing Fees with respect to the Serviced Mortgage Loans for which
_________________ is the applicable Master Servicer (the "Excess Servicing Fee
Right"), with the full right to transfer the Excess Servicing Fee Right 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 the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with respect to
the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security 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
F-3A-1
distribution of the Excess Servicing Fee Right under the Securities Act of 1933,
as amended (the "Securities Act"), or would render the disposition of the Excess
Servicing Fee Right a violation of Section 5 of the Securities Act or any state
securities laws, or would require registration or qualification of the Excess
Servicing Fee Right pursuant to the Securities Act or any state securities laws.
Very truly yours,
By:
------------------------------------
Name:
Title:
F-3A-2
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[APPLICABLE MASTER SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6 (the
"Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Right established under the Pooling and Servicing
Agreement, dated as of December 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities II Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc., as a master servicer, Xxxxx
Fargo Bank, National Association, as a master servicer, as certificate
administrator and as tax administrator, ARCap Servicing, Inc., as special
servicer, LaSalle Bank National Association, as trustee, and ABN AMRO Bank N.V.,
as fiscal agent. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
the Depositor and the applicable Master Servicer, that:
1. The Transferee is acquiring the right to receive Excess Servicing Fees
with respect to the Serviced Mortgage Loans as to which __________________ is
the applicable Master Servicer (the "Excess Servicing Fee Right") 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 Excess Servicing Fee Right has
not been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee, Certificate Administrator or the Certificate Registrar is obligated
so to register or qualify the Excess Servicing Fee Right, and (c) the Excess
Servicing Fee Right may not be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (ii) sold or transferred in transactions
which are exempt from such registration
F-3B-1
and qualification and (A) the Depositor has received a certificate from the
prospective transferor substantially in the form attached as Exhibit F-3A to the
Pooling and Servicing Agreement, and (B) each of the applicable Master Servicer
and the Depositor have received a certificate from the prospective transferee
substantially in the form attached as Exhibit F-3B to the Pooling and Servicing
Agreement.
3. The Transferee understands that it may not sell or otherwise transfer
the Excess Servicing Fee Right or any interest therein except in compliance with
the provisions of Section 3.11 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred the Excess Servicing Fee
Right, any interest in the Excess Servicing Fee Right 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 the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with respect to
the Excess Servicing Fee Right, any interest in the Excess Servicing Fee Right
or any other similar security with any person in any manner, (d) made any
general solicitation with respect to the Excess Servicing Fee Right, any
interest in the Excess Servicing Fee Right or any other similar security by
means of general advertising or in any other manner, or (e) taken any other
action with respect to the Excess Servicing Fee Right, any interest in the
Excess Servicing Fee Right or any other similar security, which (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Excess Servicing Fee Right under the Securities Act, would
render the disposition of the Excess Servicing Fee Right a violation of Section
5 of the Securities Act or any state securities law or would require
registration or qualification of the Excess Servicing Fee Right 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 the Excess Servicing Fee Right, any interest in the Excess Servicing
Fee Right or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Excess Servicing Fee Right and any payments thereon, (c) the
Pooling and Servicing Agreement and the Trust Fund created pursuant thereto, (d)
the nature, performance and servicing of the Mortgage Loans, and (e) all related
matters that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act or (b) an "accredited investor" as
defined in any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Excess Servicing Fee Right; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such investment and can afford a complete loss of such investment.
F-3B-2
7. The Transferee agrees (i) to keep all information relating to the Trust,
the Trust Fund and the parties to the Pooling and Servicing Agreement, and made
available to it, confidential, (ii) not to use or disclose such information in
any manner which could result in a violation of any provision of the Securities
Act or would require registration of the Excess Servicing Fee Right or any
Certificate pursuant to the Securities Act, and (iii) not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such holder's auditors,
legal counsel and regulators, except to the extent such disclosure is required
by law, court order or other legal requirement or to the extent such information
is of public knowledge at the time of disclosure by such holder or has become
generally available to the public other than as a result of disclosure by such
holder; provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Excess Servicing Fee Right if, and only if, such Person (x) confirms in writing
such prospective acquisition and (y) agrees in writing to keep such information
confidential, not to use or disclose such information in any manner which could
result in a violation of any provision of the Securities Act or would require
registration of the Excess Servicing Fee Right or any Certificates pursuant to
the Securities Act and not to disclose such information, and to cause its
officers, directors, partners, employees, agents or representatives not to
disclose such information, in any manner whatsoever, in whole or in part, to any
other Person other than such Persons' auditors, legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Excess Servicing Fee
Right shall not have any rights under the Pooling and Servicing Agreement except
as set forth in Section 3.11(a) of the Pooling and Servicing Agreement, and that
the Excess Servicing Fee Rate may be reduced to the extent provided in the
Pooling and Servicing Agreement.
Very truly yours,
By:
------------------------------------
Name:
Title:
F-3B-3
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN PHYSICAL FORM)
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of December 21, 2004
(the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred
Certificates")
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2004 among Bear Xxxxxxx Commercial Mortgage Securities II Inc., as
Depositor, Prudential Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan or other employee benefit
plan or arrangement, including an individual retirement account or annuity,
a Xxxxx plan or a collective investment fund or separate account in which
such plans, accounts or arrangements are invested, including an insurance
company general account, that is subject to ERISA or Section 4975 of the
Code (each, a "Plan"), nor (B) a Person who is directly or indirectly
purchasing the Transferred Certificates on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or
G-1-1
___ The Transferee is using funds from an insurance company general account
to acquire the Transferred Certificates, and the purchase and holding
of such Certificates by such Person are exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the
Code under Sections I and III of Prohibited Transaction Class Exemption
95-60.
___ The Transferred Certificates are Class ___ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one of
the individual prohibited transaction exemptions issued by the U.S.
Department of Labor to __________________ (PTE 90-30, 90-24 or 90-29),
and such Transferred Certificates have an investment grade rating on
the date of this letter, and such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is
not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Fiscal Agent, any Mortgage Loan Seller,
either Master Servicer, the Special Servicer, any Sub-Servicer, any
Exemption-Favored Party or any Borrower with respect to any Mortgage
Loan or group of Mortgage Loans that represents more than 5% of the
aggregate unamortized principal balance of the Mortgage Loans
determined on the date of the initial issuance of the Certificates, or
by an Affiliate of any such Person, and (Z) agrees that it will obtain
from each of its Transferees to which it transfers an interest in the
Transferred Certificates, a written representation that such
Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (X) and (Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans
a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
Very truly yours,
[TRANSFEREE]
By:
------------------------------------
Name:
Title:
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class ____
Certificates [having an initial aggregate [Principal Balance]
[Notional Amount] as of December 21, 2004 (the "Closing Date") of
$__________] (the "Transferred Certificates")
-----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you as follows (check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit plan
or other retirement arrangement, including an individual retirement account
or annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including an insurance company general account, that is subject to Section
406 of ERISA or Section 4975 of the Code (each, a "Plan"), nor (B) a Person
who is directly or indirectly purchasing an interest in the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or with
assets of, a Plan;
___ The Transferee is using funds from an insurance company general account to
acquire an interest in the Transferred Certificates, and the purchase and
holding of such interest by such Person are exempt from the prohibited
transaction provisions of Section 406 of
G-2-1
ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or
___ The Transferred Certificates are Class ____ Certificates, an interest in
which is being acquired by or on behalf of a Plan in reliance on one of the
individual prohibited transaction exemptions issued by the U.S. Department
of Labor to __________________ (PTE 90-30, 90-24 or 90-29), and such
Transferred Certificates have an investment grade rating on the date of
this letter, and such Plan (X) is an accredited investor as defined in Rule
501(a)(1) of Regulation D of the Securities Act, (Y) is not sponsored
(within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, the Fiscal Agent, any Mortgage Loan Seller, either Master
Servicer, the Special Servicer, any Sub-Servicer, any Exemption-Favored
Party or any Borrower with respect to any Mortgage Loan or group of
Mortgage Loans that represents more than 5% of the aggregate unamortized
principal balance of the Mortgage Loans determined on the date of the
initial issuance of the Certificates, or by an Affiliate of any such
Person, and (Z) agrees that it will obtain from each of its Transferees to
which it transfers an interest in the Transferred Certificates, a written
representation that such Transferee, if a Plan, satisfies the requirements
of the immediately preceding clauses (X) and (Y), together with a written
agreement that such Transferee will obtain from each of its Transferees
that are Plans a similar written representation regarding satisfaction of
the requirements of the immediately preceding clauses (X) and (Y).
[TRANSFEREE]
By:
------------------------------------
Name:
Title:
G-2-2
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(A)(6)(A) AND 860E(E)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Series 2004-PWR6
(the "Certificates") issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2004, among Bear Xxxxxxx Commercial Mortgage Securities II
Inc., as Depositor, Xxxxx Fargo Bank, National Association, as a
Master Servicer, as Certificate Administrator and as Tax
Administrator, Prudential Asset Resources, Inc., as a Master Servicer,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
----------------------------------------------------------------------
STATE OF )
) ss.: ____________________
COUNTY OF )
I, [ ], under penalties of perjury, declare that, to the best of my
knowledge and belief, the following representations are true, correct and
complete, and being first sworn, depose and say that:
1. I am the [ ] of [ ] (the "Purchaser"), on behalf of which I have
the authority to make this affidavit.
2. The Purchaser is acquiring Class R Certificates representing [ ]%
of the residual interest in each of the real estate mortgage investment conduits
(each, a "REMIC") designated as "REMIC I", "REMIC II" and "REMIC III",
respectively, relating to the Certificates for which an election has been or is
to be made under Section 860D of the Internal Revenue Code of 1986 (the "Code").
3. The Purchaser is a Permitted Transferee (as defined in the Pooling
and Servicing Agreement) and is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the Class R Certificates for the
account of, or as agent or nominee of, or with a view to the transfer of direct
or indirect record or beneficial ownership thereof, to a person that is not a
Permitted Transferee or to a Disqualified Organization. For the purposes hereof,
a Disqualified Organization is any of the following: (i) the United States, (ii)
any state or political subdivision thereof, (iii) any foreign government, (iv)
any international organization, (v) any agency or instrumentality of any of the
foregoing, (vi) any tax-exempt organization (other than a cooperative described
in Section 521 of the Code) which is exempt from the tax imposed
H-1-1
by Chapter 1 of the Code unless such organization is subject to the tax imposed
by Section 511 of the Code, (vii) any organization described in Section
1381(a)(2)(C) of the Code, or (viii) any other entity designated as a
"disqualified organization" by relevant legislation amending the REMIC
Provisions and in effect at or proposed to be effective as of the time of
determination. In addition, a corporation will not be treated as an
instrumentality of the United States or of any state or political subdivision
thereof if all of its activities are subject to tax (except for the Federal Home
Loan Mortgage Corporation) and a majority of its board of directors is not
selected by such governmental unit. The terms "United States" and "international
organization" shall have the meanings set forth in Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the Class R
Certificates to be attributable to a foreign permanent establishment or fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
Class R Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the Class R Certificates is to
impede the assessment or collection of tax.
8. [Check the statement that applies]
o If the Transferor requires the safe harbor under Treasury Regulation
Section 1.860E-1 to apply:
____ a) In accordance with Treasury Regulation Section 1.860E-1, the
Purchaser (i) is an "eligible corporation" as defined in Section
1.860E-1(c)(6)(i) of the Treasury Regulations, as to which the income of Class R
Certificates will only be subject to taxation in the United States, (ii) has,
and has had in each of its two preceding fiscal years, gross assets for
financial reporting purposes (excluding any obligation of a person related to
the transferee within the meaning of Section 1.860E-1(c)(6)(ii) of the Treasury
Regulations or any other assets if a principal purpose for holding or acquiring
such asset is to satisfy this condition) in excess of $100 million and net
assets of $10 million, and (iii) hereby agrees only to transfer the Certificate
to another corporation meeting the criteria set forth in Treasury Regulation
Section 1.860E-1;
or
_____ b) The Purchaser is a United States Tax Person and the
consideration paid to the Purchaser for accepting the Class R Certificates is
greater than the present value of the
H-1-2
anticipated net federal income taxes and tax benefits ("Tax Liability Present
Value") associated with owning such Certificates, with such present value
computed using a discount rate equal to the "Federal short-term rate" prescribed
by Section 1274 of the Code as of the date hereof or, to the extent it is not,
if the Transferee has asserted that it regularly borrows, in the ordinary course
of its trade or business, substantial funds from unrelated third parties at a
lower interest rate than such applicable federal rate and the consideration paid
to the Purchaser is greater than the Tax Liability Present Value using such
lower interest rate as the discount rate, the transactions with the unrelated
third party lenders, the interest rate or rates, the date or dates of such
transactions, and the maturity dates or, in the case of adjustable rate debt
instruments, the relevant adjustment dates or periods, with respect to such
borrowings, are accurately stated in Exhibit A to this letter.
o If the Transferor does not require the safe harbor under Treasury
Regulation Section 1.860E-1 to apply:
_____ c) The Purchaser is a "United States person" as defined in
Section 7701(a) of the Code and the regulations promulgated thereunder (the
Purchaser's U.S. taxpayer identification number is __________). The Purchaser is
not classified as a partnership under the Code (or, if so classified, all of its
beneficial owners are United States persons).
9. The Purchaser historically has paid its debts as they have come due
and intends to pay its debts as they come due in the future and the Purchaser
intends to pay taxes associated with holding the Class R Certificates as they
become due.
10. The Purchaser understands that it may incur tax liabilities with
respect to the Class R Certificates in excess of any cash flows generated by
such Certificates.
11. The Purchaser will not transfer the Class R Certificates to any
person or entity as to which the Purchaser has not received an affidavit
substantially in the form of this affidavit or to any person or entity as to
which the Purchaser has actual knowledge that the requirements set forth in
paragraphs 3, 4, 5, 7 or 9 hereof are not satisfied, or to any person or entity
with respect to which the Purchaser has not (at the time of such transfer)
satisfied the requirements under the Code to conduct a reasonable investigation
of the financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the prohibition
against transferring the Class R Certificates to a Disqualified Organization, an
agent thereof or a person that does not satisfy the requirements of paragraphs 7
and 9.
13. The Purchaser consents to the designation of the Tax Administrator
as the agent of the Tax Matters Person of the REMIC I, REMIC II and REMIC III
pursuant to Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
H-1-3
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
________________.
By:
------------------------------------
Name:
Title:
Personally appeared before me [ ] known or proved to me to be the same
person who executed the foregoing instrument and to be a [ ] of the Purchaser,
and acknowledged to me that he/she executed the same as his/her free act and
deed and as the free act and deed of the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
-----------------------------------------
Notary Public
H-1-4
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Xxxxx Fargo Bank, X.X.
Xxxxx Xxxxx Xxxxxx
Xxxxx xxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Trust 2004-PWR6
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6, Class R
Certificates, evidencing a ____% Percentage Interest in such Class
(the "Residual Interest Certificates")
----------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2004 among Bear Xxxxxxx Commercial Mortgage Securities II Inc., as
Depositor, Prudential Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, as follows:
1. No purpose of the Transferor relating to the transfer of the
residual interest 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 H-1. The Transferor does not know or believe that
any representation contained therein is false.
H-2-1
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or the
beneficial owners of the Transferee if the Transferee is classified as a
partnership under the Code) as contemplated by Treasury Regulation Section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor has
determined that the Transferee has historically paid its debts as they became
due and has found no significant evidence to indicate that the Transferee will
not continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Residual Interest Certificates may not be
respected for United States income tax purposes (and the Transferor may continue
to be liable for United States income taxes associated therewith) unless the
Transferor has conducted such an investigation.
Very truly yours,
By:
------------------------------------
(Transferor)
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
-----------------------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.27 of the Pooling
and Servicing Agreement, dated as of December 1, 2004 (the "Agreement") among
Bear Xxxxxxx Commercial Mortgage Securities II Inc., as Depositor, Prudential
Asset Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National
Association, as a Master Servicer, as Certificate Administrator and as Tax
Administrator, ARCap Servicing, Inc., as Special Servicer, the undersigned as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, and relating to Bear Xxxxxxx
Commercial Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-PWR6 (the "Certificates"). Capitalized terms used but
not otherwise defined herein shall have respective meanings assigned to them in
the Agreement.
Notice is hereby given that ____________________________________ has
designated ________________________________ to serve as the Special Servicer
under the Agreement.
The designation of ____________________________ as Special Servicer
will become final if certain conditions are met and each Rating Agency delivers
to LaSalle Bank National Association, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in an
Adverse Rating Event with respect to any Class of the Certificates. Accordingly,
such confirmation is hereby requested as soon as possible.
I-1-1
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
----------------------------------------
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By:
----------------------------------
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE XXXXXX-XXXX COMPANIES, INC.
By:
-----------------------------------
Name:
Title:
Date:
I-1-2
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
[CERTIFICATE ADMINISTRATOR]
[TAX ADMINISTRATOR]
[TRUSTEE]
[FISCAL AGENT]
[MASTER SERVICERS]
[DEPOSITOR]
[SPECIAL SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
-----------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.27 of the Pooling and Servicing Agreement, dated
as of December 1, 2004 relating to Bear Xxxxxxx Commercial Mortgage Securities
II Inc., Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6 (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 and agrees 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 2.07 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
----------------------------------------
By:
------------------------------------
Name:
Title:
I-1-2
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6
TEXT:
See Exhibit I attached hereto and made a part hereof.
A sale by the Seller/Debtor of, or a grant by the Seller/Debtor of a security
interest in, any collateral described in this financing statement will violate
the rights of the Buyer/Secured Party listed in Item 3 above.
J-1
EXHIBIT I TO EXHIBIT J
----------------------
SELLER/DEBTOR:
Bear Xxxxxxx Commercial Mortgage Securities II Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BUYER/SECURED PARTY:
LaSalle Bank National Association
as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities II Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities II Inc., 2004-PWR6
DESCRIPTION OF THE PROPERTY COVERED:
This Exhibit I is attached to and incorporated in a financing
statement pertaining to Bear Xxxxxxx Commercial Mortgage Securities II Inc. as
depositor (referred to as the "Debtor" for the purpose of this financing
statement only), and LaSalle Bank National Association as trustee for the
holders of the Series 2004-PWR6 Certificates (referred to as the "Secured Party"
for purposes of this financing statement only), under that certain Pooling and
Servicing Agreement, dated as of December 1, 2004 (the "Pooling and Servicing
Agreement"), among the Debtor as depositor, the Secured Party as trustee,
Prudential Asset Resources, Inc. as a master servicer (in such capacity, a
"Master Servicer"), Xxxxx Fargo Bank, National Association as a Master Servicer
(in such capacity, a "Master Servicer"), as certificate administrator and as tax
administrator, ARCap Servicing, Inc. as special servicer (in such capacity, the
"Special Servicer") and ABN AMRO Bank N.V. as fiscal agent, relating to the
issuance of the Debtor's Commercial Mortgage Pass-Through Certificates, Series
2004-PWR6 (collectively, the "Series 2004-PWR6 Certificates"). Capitalized terms
used herein and not defined shall have the respective meanings given to them in
the Pooling and Servicing Agreement. The attached financing statement covers all
of the Debtor's right (including the power to convey title thereto), title and
interest in and to the Trust Fund created pursuant to the Pooling and Servicing
Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage
loans (the "Mortgage Loans") listed on the Pooled Mortgage Loan
Schedule, as the same may be updated from time to time, which
Pooled Mortgage Loan Schedule as of the Closing Date is attached
hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
J-2
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage
Note and Mortgage (collectively, with such related Mortgage Note
and Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by each of the Master
Servicers pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in each Collection
Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. All REO Property;
6. (a) the respective REO Accounts required to be maintained by the
Special Servicer pursuant to the Pooling and Servicing Agreement,
(b) all funds from time to time on deposit in each REO Account,
(c) the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the Servicing Account(s) and Reserve Account(s) required to
be maintained by the Master Servicers or Special Servicer
pursuant to the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Servicing Account(s)
and Reserve Account(s);
8. (a) the Excess Liquidation Proceeds Account(s) and the Interest
Reserve Account(s) required to be maintained by the Certificate
Administrator pursuant to the Pooling and Servicing Agreement,
and (b) all funds from time to time on deposit in the Excess
Liquidation Proceeds Account(s) and the Interest Reserve
Account(s);
9. (a) the Distribution Account required to be maintained by the
Certificate Administrator on behalf of the Buyer/Secured Party
pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and
interest and the right to enforce the related payment
obligations, arising from or under any such investments;
J-3
10. The rights of the Seller/Debtor under Sections 2, 3, 4 (other
than Section 4(c)) and 5 (and, to the extent related to the
foregoing, Sections 9, 10, 11, 12, 13, 14, 15, 17 and 18) of each
Pooled Mortgage Loan Purchase Agreement;
11. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Mortgage Loan Documents and the
Pooling and Servicing Agreement, transferred to the Trust and to
be serviced by the Master Servicers or Special Servicer; and
12. All income, payments, products and proceeds of any of the
foregoing, together with any additions thereto or substitutions
therefor.
THE SELLER/DEBTOR AND THE BUYER/SECURED PARTY INTEND THE TRANSACTIONS
CONTEMPLATED BY THE POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF
THE INTEREST IN THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER
MORTGAGE LOAN DOCUMENTS, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE
NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT
AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE OR THAT A
FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
BUYER/SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN
DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND
OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF
THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION,
NOR SHOULD THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A
FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE
BUYER/SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT
LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT
TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH
SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION,
ANY PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS
MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
A SALE BY THE SELLER/DEBTOR OF, OR A GRANT BY THE SELLER/DEBTOR OF A SECURITY
INTEREST IN, ANY COLLATERAL DESCRIBED IN THIS
J-4
FINANCING STATEMENT WILL VIOLATE THE RIGHTS OF THE BUYER/SECURED PARTY.
J-5
EXHIBIT A TO EXHIBIT I TO EXHIBIT J
-----------------------------------
SCHEDULE OF MORTGAGE LOANS
[See Schedules I-A, I-B, I-C and I-D]
J-6
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
-----------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities II Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, with respect to the Bear
Xxxxxxx Commercial Mortgage Securities II Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-PWR6 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] of $___________
aggregate [Certificate Principal Balance/Certificate Notional
Amount] of the Class ____ Certificates.
2. The undersigned is requesting access to the following information
(the "Information"):
___ The information on the Master Servicer's internet website
pursuant to Section 4.02(f) of the ---------------- Pooling
and Servicing Agreement.
___ The information on the Certificate Administrator's internet
website pursuant to Section 4.02(a) of --------------- the
Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the ---------------- Pooling
and Servicing Agreement.
3. In consideration of the Certificate Administrator's disclosure to
the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in
K-1-1
evaluating the Information), and such Information will not,
without the prior written consent of the Certificate
Administrator, be disclosed by the undersigned or by its
officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that the undersigned may provide all or any part of the
Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest
therein, but only if such person or entity confirms in writing
such ownership interest or prospective ownership interest and
agrees to keep it confidential; and provided, further, that the
undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Non-Registered Certificate pursuant to
Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
----------------------------------------
[CERTIFICATEHOLDER] [BENEFICIAL HOLDER
OF A CERTIFICATE]
By:
------------------------------------
Name:
Title:
Telephone No.:
K-1-2
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration (CMBS)
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
-----------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities II Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer, Xxxxx Fargo Bank, National Association,
as a Master Servicer, as Certificate Administrator and as Tax Administrator,
ARCap Servicing, Inc., as Special Servicer, LaSalle Bank National Association,
as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, with respect to the Bear
Xxxxxxx Commercial Mortgage Securities II Inc. Commercial Mortgage Pass-Through
Certificates, Series 2004-PWR6 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting access to the following information
(the "Information") for use in evaluating such possible
investment:
___ The information on the Master Servicer's internet website
pursuant to Section 4.02(f) of the Pooling and Servicing
Agreement.
___ The information on the Certificate Administrator's internet
website pursuant to Section 4.02(a) of the Pooling and Servicing
Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Certificate Administrator's disclosure to
the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in making the investment decision described in
paragraph 1), and such
K-2-1
Information will not, without the prior written consent of the
Certificate Administrator, be disclosed by the undersigned or by
its officers, directors, partners employees, agents or
representatives in any manner whatsoever, in whole or in part;
provided that in the event the undersigned purchases any
Certificate or any interest in any Certificate, the undersigned
may provide all or any part of the Information to any other
person or entity that holds or is contemplating the purchase of
any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential; and
provided, further, that the undersigned may provide all or any
part of the Information to its auditors, legal counsel and
regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Non-Registered Certificate pursuant to
Section 5 of the Securities Act.
All capitalized terms used but not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
------------------------------------
Name:
Title:
Telephone No.:
K-2-2
EXHIBIT L
FORM OF POWER OF ATTORNEY BY TRUSTEE
RECORDING REQUESTED BY:
[NAME OF MASTER SERVICER
OR SPECIAL SERVICER]
AND WHEN RECORDED MAIL TO:
[ADDRESS OF MASTER SERVICER OR
SPECIAL SERVICER]
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for holders of the Bear Xxxxxxx Commercial Mortgage
Securities II Inc., Commercial Mortgage Pass-Through Certificates, Series
2004-PWR6 ("Trustee"), under that certain Pooling and Servicing Agreement dated
as of December 1, 2004 (the "Pooling and Servicing Agreement"), does hereby
nominate, constitute and appoint [NAME OF MASTER SERVICER OR SPECIAL SERVICER],
as [Master Servicer] [Special Servicer] under the Pooling and Servicing
Agreement ("[SHORT NAME]"), as its true and lawful attorney-in-fact for it and
in its name, place, stead and for its use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable [SHORT NAME] to service and administer the mortgage loans identified on
Schedule __ to the Pooling and Servicing Agreement in connection with the
performance by [SHORT NAME] of its duties as [Master Servicer] [Special
Servicer] under the Pooling and Servicing Agreement, giving and granting unto
[SHORT NAME] full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that [SHORT NAME] shall lawfully do or
cause to be done by virtue hereof.
L-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this _____ day of _________, 20__.
LASALLE BANK NATIONAL ASSOCIATION,
as trustee for the holder of Bear
Xxxxxxx Commercial Mortgage Securities II
Inc., Commercial Mortgage Pass-Through
Certificates, Series 2004-PWR6
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
L-2
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On __________________ before me, _______________________________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared ____________________________________________________________
Name(s) of Document Signer(s)
________________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------
Signature of Notary
(Affix seal in the above blank space)
L-3
EXHIBIT M
[RESERVED]
M-1
EXHIBIT N
FORM OF FINAL CERTIFICATION OF TRUSTEE
[Date]
[parties to pooling and servicing agreement]
[Pooled Mortgage Loan Sellers]
[Controlling Class Representative]
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR6
----------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and Servicing
Agreement dated as of December 1, 2004 (the "Pooling and Servicing Agreement")
pursuant to which the certificates of the above-referenced series were issued,
the undersigned hereby certifies that, with respect to each Original Pooled
Mortgage Loan subject to the Pooling and Servicing Agreement, and subject to the
exceptions noted in the schedule of exceptions attached hereto, that: (i) the
original Mortgage Note specified in clause (i) of the definition of "Mortgage
File" and all allonges thereto, if any (or a copy of such Mortgage Note,
together with a lost note affidavit and indemnity certifying that the original
of such Mortgage Note has been lost), the original or copy of documents
specified in clauses (ii), (iii), (iv) (except with respect to the
Non-Trust-Serviced Pooled Mortgage Loan), (viii) (without regard to the
verification of the effective date with respect to a title policy or the date of
funding with respect to a title commitment) and (x) (if the Pooled Mortgage Loan
Schedule specifies that a material portion of the interest of the Borrower in
the related Mortgaged Property consists of a leasehold interest) of the
definition of "Mortgage File" have been received by the undersigned or Custodian
on its behalf; [(ii) the recordation/filing contemplated by Section 2.01(e) of
the Pooling and Servicing Agreement has been completed (based solely on receipt
by the undersigned of the particular recorded/filed documents or an appropriate
receipt of recording/filing therefor);] (iii) all documents received by the
undersigned or any Custodian with respect to such Pooled Mortgage Loan have been
reviewed by the undersigned or by such Custodian on its behalf and (A) appear
regular on their face (handwritten additions, changes or corrections shall not
constitute irregularities if initialed by the Borrower), (B) appear to have been
executed and (C) purport to relate to such Pooled Mortgage Loan; and (iv) based
on the examinations referred to in Sections 2.02(a) and 2.02(b) of the Pooling
and Servicing Agreement and only as to the foregoing documents, the information
set forth in the Pooled Mortgage Loan Schedule with respect to the items
specified in clause (iii)(A) and clause (vi) of the definition of "Pooled
Mortgage Loan Schedule" accurately reflects the information set forth in the
related Mortgage File.
N-1
Capitalized terms used but not defined herein shall have the meanings given
them in the Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
N-2
EXHIBIT O
FORM OF DEFEASANCE CERTIFICATION
FOR ANY LOAN THAT IS NOT AMONG TEN (10) LARGEST LOANS IN POOL, WITH OUTSTANDING
BALANCE OF (A) $20,000,000 OR LESS, OR (B) LESS THAN 5% OF OUTSTANDING POOL
BALANCE, WHICHEVER IS LESS
To: Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: [ ]
From: [PAR] [WFB], in its capacity as a Master Servicer (a "Master
Servicer") under the Pooling and Servicing Agreement dated as of
December 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities II Inc. as Depositor,
Prudential Asset Resources, Inc. as a Master Servicer, Xxxxx Fargo
Bank, National Association as a Master Servicer, as Certificate
Administrator and as Tax Administrator, ARCap Servicing, Inc. as
Special Servicer, LaSalle Bank National Association as Trustee and ABN
AMRO N.V. as Fiscal Agent.
Date: _________, 20___
Re: Bear Xxxxxxx Commercial Mortgage Securities II Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR6
Mortgage loan (the "Mortgage Loan") identified by loan number _____ on
the Pooled Mortgage Loan Schedule attached to the Pooling and
Servicing Agreement and heretofore secured by the Mortgaged Properties
identified on the Pooled Mortgage Loan Schedule by the following
names:____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we
hereby:
1. Notify you that the Borrower has consummated a defeasance of
the Mortgage Loan pursuant to the terms of the Mortgage
Loan, of the type checked below:
O-1
____ a full defeasance of the payments scheduled to be due in
respect of the entire Stated Principal Balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the Stated Principal Balance of the
Mortgage Loan that represents ___% of the entire Stated
Principal Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________ or
_______% of the entire Stated Principal Balance;
2. Certify that each of the following is true, subject to those
exceptions set forth with explanatory notes on Exhibit A hereto,
which exceptions the Master Servicer has determined, consistent
with the Servicing Standard, will have no material adverse effect
on the Mortgage Loan or the defeasance transaction:
a. The Mortgage Loan Documents permit the defeasance, and the
terms and conditions for defeasance specified therein were
satisfied in all material respects in completing the
defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section
2(a)(16) of the Investment Company Act of 1940 as amended
(15 U.S.C. 80A1), (ii) are listed as "Qualified Investments
for 'AAA' Financings" under Paragraphs 1, 2 or 3 of "Cash
Flow Approach" in Standard & Poor's Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are
rated 'AAA' by Standard & Poor's, (iv) if they include a
principal obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to prepayment, call
or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
-------------------------------
d. The Master Servicer received an opinion of counsel (from
counsel approved by the Master Servicer in accordance with
the Servicing Standard) that the defeasance will not result
in an Adverse REMIC Event.
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance
Obligor") as to which one of the statements checked below is
true:
____ the related Borrower was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings
O-2
Real Estate Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of the date of
the defeasance, and after the defeasance owns no assets
other than the defeasance collateral and real property
securing Mortgage Loans included in the pool;
____ the related Borrower designated a Single-Purpose Entity
(as defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Master Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for the
benefit of the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter
described below contained statements that it reviewed a
broker or similar confirmation of the credit, of the
defeasance collateral to an Eligible Account (as defined in
the S&P Criteria) in the name of the Defeasance Obligor,
which account is maintained as a securities account by the
Trustee acting as a securities intermediary.
g. As securities intermediary, the Trustee is obligated to make
the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the Master
Servicer's collection account in the amounts and on the
dates specified in the Mortgage Loan Documents or, in a
partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium
specified in the Mortgage Loan Documents (the "Scheduled
Payments").
h. The Master Servicer received from the Borrower written
confirmation from a firm of independent certified public
accountants, who were approved by the Master Servicer in
accordance with the Servicing Standard, stating that (i)
revenues from principal and interest payments made on the
defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be
sufficient to timely pay each of the Scheduled Payments
after the defeasance including the payment in full of the
Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date
(or, in the case of an ARD Mortgage Loan, on its Anticipated
Repayment Date), (ii) the revenues received in any month
from the defeasance collateral will be applied to make
Scheduled Payments within four (4) months after the date of
receipt, and (iii) interest income from the defeasance
collateral to the Defeasance Obligor in
O-3
any calendar or fiscal year will not exceed such Defeasance
Obligor's interest expense for the Mortgage Loan (or the
allocated portion thereof in a partial defeasance) for such
year.
i. The Master Servicer received opinions from counsel, who were
approved by the Master Servicer in accordance with the
Servicing Standard, that (i) the agreements executed by the
Borrower and/or the Defeasance Obligor in connection with
the defeasance are enforceable against them in accordance
with their terms except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditor's rights
generally, and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law), and (ii) the Trustee will have a
perfected, first priority security interest in the
defeasance collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance
collateral only in Permitted Investments (as defined in the
S&P Criteria), (ii) permit release of surplus defeasance
collateral and earnings on reinvestment to the Defeasance
Obligor or the Borrower only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii)
prohibit any subordinate liens against the defeasance
collateral, and (iv) provide for payment from sources other
than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the
securities intermediary for administering the defeasance and
the securities account and all fees and expenses of
maintaining the existence of the Defeasance Obligor.
k. The Mortgage Loan is not among the ten (10) largest loans in
the Mortgage Pool. The entire Stated Principal Balance of
the Mortgage Loan as of the date of defeasance was
$___________ [$20,000,000 or less or less than five percent
of the Mortgage Pool balance, whichever is less] which is
less than 5% of the aggregate Certificate Principal Balance
of the Certificates as of the date of the most recent
Certificate Administrator Report received by us (the
"Current Report").
l. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total
of all fully and partially defeased Mortgage Loans to
$__________________, which is _____% of the aggregate
Certificate Balance of the Certificates as of the date of
the Current Report.
O-4
3. Certify that, in addition to the foregoing, the Master Servicer
has imposed such additional conditions to the defeasance (or
waived such conditions), subject to the limitations imposed by
the Mortgage Loan Documents, as are consistent with the Servicing
Standard.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the
Defeasance Obligor, and opinions of counsel and independent
accountants executed and delivered in connection with the
defeasance described above and that originals or copies of such
agreements, instruments and opinions have been or will be
transmitted to the Trustee or Custodian on its behalf for
placement in the related Mortgage File or, to the extent not
required to be part of the related Mortgage File, are in the
possession of the Master Servicer as part of the Master
Servicer's Servicing File.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing
Standard set forth in, and the other applicable terms and
conditions of, the Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did
constitute a Servicing Officer as of the date of the defeasance
described above.
7. Agree to provide copies of all items listed in Exhibit B to you
upon request.
O-5
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[PAR] [WFB] as Master
Servicer
By:
------------------------------------
Name:
Title:
O-6
EXHIBIT P
COPY OF PRIMARY SERVICER UNDERTAKING TO INDEMNIFY
UNDERTAKING
Reference is made to the Pooling and Servicing Agreement, dated as of
December 1, 2004 (the "Pooling and Servicing Agreement"), by and among Bear
Xxxxxxx Commercial Mortgage Securities II Inc., as depositor, Prudential Asset
Resources, Inc., as a master servicer, Xxxxx Fargo Bank, National Association
("WFB"), as a master servicer, certificate administrator and tax administrator,
ARCap Servicing, Inc., as special servicer, LaSalle Bank National Association,
as trustee, and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used and
not defined herein have the meanings assigned to such terms in the Pooling and
Servicing Agreement.
As additional consideration for the execution of the Primary Servicing
Agreement by WFB as a Master Servicer and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Primary Servicer hereby agrees, for the benefit of the Trust and the other
Persons set forth in Section 3.22(l) of the Pooling and Servicing Agreement, to
perform the obligations imposed on the Primary Servicer under Section 3.22(l) of
the Pooling and Servicing Agreement as if such obligations were fully set forth
in this instrument. This undertaking shall not be waived, rescinded or otherwise
modified without the written consent of each of the entities set forth in such
Section 3.22(l) and written confirmation from each Rating Agency for the Rated
Certificates to the effect that such waiver, rescission or other modification
shall not result in an Adverse Rating Event with respect to any Class of Rated
Certificates rated by such Rating Agency.
P-1
IN WITNESS WHEREOF, the Primary Servicer has caused its name to be
signed hereto by its officer thereunto duly authorized as of the 21st day of
December, 2004.
NATIONWIDE LIFE INSURANCE COMPANY,
as Primary Servicer
By: /s/
------------------------------------
Name:
Title:
P-2
SCHEDULE I-A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
S-I-A-1
SELLER
LOAN
ID NUMBER PROPERTY NAME ADDRESS
---- ------- --------------------------------------------------- -------------------------------------------------------------------
1 6105717 00 Xxxx Xxxxx 00 Xxxx Xxxxx
0 6105594 Eton Collection 28601 Xxxxxxx Xxxxxxxxx
0 0000000 XXXX Xxxxxxxx 0000 Xxxxxxx Xxxx
8 6105569 Waterfront I & II 801 North Fairfax Street, 000 Xxxxxxx Xxxxxx
9 6105368 Xxx Xxxxxx xx 00xx 0000 Xxxxx Xxxxx Xxxxxx
10 6105570 Xxxxxx Xxxxx 0000 Xxxxx Xxxxxxx Expressway
11 6105612 Xxxxx Plastic Manufacturing Plant Various
11-a 6105612 Xxxxx Plastic Manufacturing Plant - Alsip, IL South 0000 Xxxx 000xx Xxxxxx
11-b 6105612 Xxxxx Plastic Manufacturing Plant - Tolleson, AZ 0000 Xxxx Xxxxxxxxxx Xxxxxx
11-c 6105612 Xxxxx Plastic Manufacturing Plant - Geddes, NY 0000 Xxxxxx Xxxxxx
11-d 6105612 Xxxxx Plastic Manufacturing Plant - Alsip, IL North 11700 South Central Avenue
16 6105614 Shaklee Corporation 0000 Xxxxxx Xxxx
25 6105607 Residence Inn by Marriott 0000 Xxxx 00xx Xxxxxx
26 6105709 Metropolitan Apartments 000 Xxxxx Xxxxxx Xxxxxx
29 6105613 Castle Rock Portfolio Various
29-a 6105613 Castle Rock - Englewood, CO I 0000 Xxxx Xxxxxxxx Xxxxxx
29-b 6105613 Castle Rock - Chandler, AZ 000 Xxxxx Xxxxx Xxxx
29-c 6105613 Castle Rock - Englewood, CO III 0000 Xxxx Xxxxxxxx Xxxxxx
29-d 6105613 Castle Rock - Englewood, CO IV 0000 Xxxx Xxxxxxxx Xxxxxx
00-x 6105613 Castle Rock - Englewood, CO II 0000 Xxxx Xxxxxxxx Xxxxxx
00-x 6105613 Castle Rock - Englewood, CO V 0000 Xxxx Xxxxxxxx Xxxxxx
29-g 6105613 Castle Rock - Englewood, CO VI SEC Navajo Street and Xxxxxxxx Avenue
29-h 6105613 Castle Rock - Englewood, CO VII 0000 Xxxx Xxxxxxxx Xxxxxx
31 6105649 Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxx
33 6105609 Courtyard by Marriott 0000 Xxxxxxx Xxxx
36 6105212 Heritage Town Center 1392 and 0000 X. Xxxxxxx Xxxxxx
37 6105597 Wolverine Brass Various
37-a 6105597 Wolverine Brass - Concordville, PA 00 XxXxxx Xxxxxx
37-b 6105597 Wolverine Brass - Oceanside, CA 4056 Xxxxx Xxxxxxx
00 0000000 Xxxxxx Xxxx Place Outlots 15215, 15375, 00000 Xxxxx XxXxxxxx Xxxx and 15200 South 94th Aveune
44 6105414 Xxx Xxxx Center 0000-0000 Xxxxxxx Xxxx
45 6105447 World Airways Corporate Headquarters 000 Xxxxx Xxxxx
47 6105641 Parkridge Center 0000 Xxxxxxx Xxxxx Xxxxxxx
48 6105630 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxxxxx
49 6105634 Antonio Parkway 23091, 23111, & 00000 Xxxxxxx Xxxxxxx
50 6105620 Pioneer Industrial II 10440 & 10450 Pioneer Boulevard
55 6105617 Eastgate Apartments 0000 Xxxxxxxx Xxxxxx
56 6105592 Holiday Park Manufactured Home Community 0000 Xxxxx Xxxx
59 6105608 SpringHill Suites by Marriott 0000 X Xxxxxx
65 6105578 Los Alamos Business Center 0000 Xxxxxxx Xxxxx
67 6105633 Crossroads Xxxxxx Xxxxxxxx Xxxxxx 000-000 Xxxxx 00xx Xxxxxx
69 6105635 Hunter Technology Park 879 & 000 Xxxxxxxxxxx Xxxxxx
73 6105455 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxx
74 6105627 Xxxx Xxxxx Xxxxxxxxxx 000 Xxxx Xxxxx
82 6105547 Birch Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxx
X&X MONTHLY DEBT
ID CITY STATE ZIP CODE ORIGINAL BALANCE CUT-OFF DATE BALANCE SERVICE
------ ----------------------- ---------- --------- ---------------- -------------------- ----------------
1 Xxx Xxxx XX 00000 125,000,000 125,000,000 686,389
3 Xxxxxxxx XX 00000 57,000,000 56,936,666 320,785
6 Xxx Xxxxxxx XX 00000 33,000,000 32,950,595 207,805
8 Xxxxxxxxxx XX 00000 24,000,000 24,000,000 141,739
9 Xxxxxx XX 00000 22,900,000 22,900,000 132,042
10 Xxxxxx XX 00000 22,400,000 22,331,405 129,018
11 Various Various Various 21,200,000 21,151,562 146,311
11-a Xxxxx XX 00000 9,108,000 9,087,190
11-b Xxxxxxxx XX 00000 7,387,000 7,370,122
11-c Xxxxxx XX 00000 2,722,000 2,715,781
11-d Xxxxx XX 00000 1,983,000 1,978,469
16 Xxxxxxxxxx XX 00000 18,800,000 18,716,799 129,748
25 Xxxxxxxxx XX 00000 11,600,000 11,600,000 96,390
26 Xxxxxx XX 00000 11,500,000 11,486,259 61,946
29 Various Various Various 9,300,000 9,278,751 64,184
29-a Xxxxxxxxx XX 00000 2,527,000 2,521,226
29-b Xxxxxxxx XX 00000 1,983,000 1,978,469
29-c Xxxxxxxxx XX 00000 1,345,000 1,341,927
29-d Xxxxxxxxx XX 00000 1,307,000 1,304,014
29-e Xxxxxxxxx XX 00000 1,018,000 1,015,674
29-f Xxxxxxxxx XX 00000 715,000 713,366
29-g Xxxxxxxxx XX 00000 257,000 256,413
29-h Xxxxxxxxx XX 00000 148,000 147,662
31 Xxxxxxxxxx XX 00000 7,920,000 7,911,964 46,976
33 Xxxxxxxxx XX 00000 7,000,000 7,000,000 58,166
36 Xxxxx Xxxxx XX 00000 6,650,000 6,639,611 40,757
37 Various Various Various 6,300,000 6,285,606 43,479
37-a Xxxxxxxxxxxx XX 00000 3,423,000 3,415,179
37-b Xxxxxxxxx XX 00000 2,877,000 2,870,427
39 Xxxxxx Xxxx XX 00000 6,000,000 6,000,000 35,320
44 Xxxxxx XX 00000 5,600,000 5,504,107 46,743
45 Xxxxxxxxx Xxxx XX 00000 5,500,000 5,436,989 41,853
47 Xxxxxxxxx XX 00000 5,250,000 5,239,652 30,338
48 Xxxxxx XX 00000 5,040,000 5,040,000 29,188
00 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 5,000,000 5,000,000 28,862
00 Xxxxx Xx Xxxxxxx XX 00000 5,000,000 4,990,123 28,862
55 Xxxxx XX 00000 4,500,000 4,490,797 25,522
56 Xxxxxxxxxx XX 00000 4,450,000 4,429,924 27,433
59 Xxxxxxxxx XX 00000 4,200,000 4,200,000 34,900
65 Xxx Xxxxxx XX 00000 3,700,000 3,684,776 24,066
67 Xxxxx XX 00000 3,600,000 3,596,198 20,872
69 Xxxxxxxxx XX 00000 3,500,000 3,496,346 20,425
73 Xxxxxxxx XX 00000 3,285,000 3,270,317 19,801
74 Xxx Xxxxx XX 00000 3,200,000 3,193,399 18,069
82 Xxxxxxx Xxxxx XX 00000 2,300,000 2,293,605 13,923
ORIGINAL TERM STATED REMAINING
IO MONTHLY DEBT INTEREST ACCRUAL MATURITY DATE OR TO MATURITY TERM TO MATURITY
ID SERVICE MORTGAGE RATE BASIS ARD LOAN (Y/N) ARD OR ARD (MOS.) OR ARD (MOS.)
---- --------------- ------------- ---------------- -------------- ---------------- -------------- ----------------
1 NAP 5.20000% Actual/360 Yes 12/01/11 84 84
3 NAP 5.42000% Actual/360 No 11/01/14 120 119
6 NAP 5.76000% Actual/360 No 11/01/14 120 119
8 118,828 5.86000% Actual/360 Yes 09/01/14 120 117
9 109,125 5.64000% Actual/360 Yes 06/01/14 120 114
10 NAP 5.63000% Actual/360 No 09/01/14 120 117
11 NAP 5.54000% Actual/360 No 11/01/24 240 239
11-a
11-b
11-c
11-d
16 NAP 5.54000% Actual/360 No 10/01/24 240 238
25 NAP 5.76000% Actual/360 No 12/01/19 180 180
26 NAP 5.03000% Actual/360 No 11/01/14 120 119
29 NAP 5.54000% Actual/360 No 11/01/24 240 239
29-a
29-b
29-c
29-d
29-e
29-f
29-g
29-h
31 NAP 5.90000% Actual/360 No 11/01/14 120 119
33 NAP 5.76000% Actual/360 No 12/01/19 180 180
36 NAP 5.48000% Actual/360 No 11/01/14 120 119
37 NAP 5.54000% Actual/360 No 11/01/24 240 239
37-a
37-b
39 NAP 5.83000% Actual/360 No 12/01/14 120 120
44 NAP 5.83000% Actual/360 No 07/01/19 180 175
45 NAP 6.76000% Actual/360 Yes 06/01/19 180 174
47 NAP 5.66000% Actual/360 No 10/01/14 120 118
48 NAP 5.68000% Actual/360 No 12/01/14 120 120
49 23,869 5.65000% Actual/360 No 10/01/14 120 118
50 NAP 5.65000% Actual/360 No 10/01/14 120 118
55 NAP 5.49000% Actual/360 No 10/01/14 120 118
56 NAP 5.54000% Actual/360 No 09/01/14 120 117
59 NAP 5.76000% Actual/360 No 12/01/19 180 180
65 NAP 6.10000% Actual/360 No 09/01/14 120 117
67 NAP 5.69000% Actual/360 No 11/01/14 120 119
69 NAP 5.75000% Actual/360 Yes 11/01/14 120 119
73 NAP 6.05000% Actual/360 Yes 07/01/14 120 115
74 NAP 5.45000% Actual/360 No 10/01/14 120 118
82 NAP 6.09000% Actual/360 Yes 09/01/14 120 117
ORIGINAL REMAINING
AMORTIZATION AMORTIZATION CROSSED WITH CROSSED OWNERSHIP
ID TERM (MOS.) TERM (MOS.) OTHER LOANS LOAN ID PREPAYMENT PROVISIONS (# OF PAYMENTS) INTEREST
------ ------------- ------------- ------------- ------- -------------------------------------------- ------------
1 360 360 NAP NAP LO(24)/Defeasance(56)/Open(4)(5) Fee
3 360 359 NAP NAP LO(26)/Defeasance(90)/Open(4) Fee
6 300 299 NAP NAP LO(26)/Defeasance(87)/Open(7) Leasehold
8 360 360 NAP NAP LO(28)/Defeasance(88)/Open(4) Fee
9 360 360 NAP NAP LO(31)/Defeasance(85)/Open(4) Fee
10 360 357 NAP NAP LO(28)/Defeasance(88)/Open(4) Fee
11 240 239 NAP NAP LO(26)/Defeasance(210)/Open(4) Fee
11-a Fee
11-b Fee
11-c Fee
11-d Fee
16 240 238 NAP NAP LO(27)/Defeasance(209)/Open(4) Fee
25 180 180 NAP NAP LO(25)/Defeasance(151)/Open(4) Fee
26 360 359 NAP NAP LO(26)/Defeasance(90)/Open(4) Fee
29 240 239 NAP NAP LO(26)/Defeasance(210)/Open(4) Fee
29-a Fee
29-b Fee
29-c Fee
29-d Fee
29-e Fee
29-f Fee
29-g Fee
29-h Fee
31 360 359 NAP NAP LO(26)/Defeasance(90)/Open(4) Fee
33 180 180 NAP NAP LO(25)/Defeasance(151)/Open(4) Fee
36 300 299 NAP NAP LO(26)/Defeasance(90)/Open(4) Fee
37 240 239 NAP NAP LO(26)/Defeasance(210)/Open(4) Fee
37-a Fee
37-b Fee
39 360 360 NAP NAP LO(25)/Defeasance(91)/Open(4) Fee
44 180 175 NAP NAP LO(47)/GRTR1% or YM(126)/Open(7) Fee
45 240 234 NAP NAP LO(31)/Defeasance(145)/Open(4) Fee
47 360 358 NAP NAP LO(27)/Defeasance(89)/Open(4) Fee
48 360 360 NAP NAP LO(25)/Defeasance(91)/Open(4) Fee
49 360 360 NAP NAP LO(27)/GRTR1% or YM(89)/Open(4) Fee
50 360 358 NAP NAP LO(27)/GRTR1% or YM(89)/Open(4) Fee
55 360 358 NAP NAP LO(27)/GRTR1% or YM(86)/Open(7) Fee
56 300 297 NAP NAP LO(28)/Defeasance(88)/Open(4) Fee
59 180 180 NAP NAP LO(25)/Defeasance(151)/Open(4) Leasehold
65 300 297 NAP NAP LO(28)/Defeasance(88)/Open(4) Fee
67 360 359 NAP NAP LO(26)/GRTR1% or YM(90)/Open(4) Fee
69 360 359 NAP NAP LO(47)/GRTR1% or YM(69)/Open(4) Fee
73 360 355 NAP NAP LO(30)/Defeasance(86)/Open(4) Fee
74 360 358 NAP NAP LO(27)/Defeasance(89)/Open(4) Fee
82 360 357 NAP NAP LO(28)/GRTR1% or YM(88)/Open(4) Fee
ADMINISTRATIVE GRACE LETTER OF LETTER OF CREDIT
ID LOAN SELLER FEE RATE DUE DATE PERIOD CREDIT DESCRIPTION
------ ----------- -------------- -------- ------ --------- --------------------------
1 PMCF 0.03280% 1st 0
3 PMCF 0.11280% 1st 5 4,730,000 Vacant Space Reserve (LOC)
6 PMCF 0.05280% 1st 5
8 PMCF 0.03280% 1st 5
9 PMCF 0.08280% 1st 5
10 PMCF 0.03280% 1st 5
11 PMCF 0.03280% 1st 5
11-a PMCF
11-b PMCF
11-c PMCF
11-d PMCF
16 PMCF 0.03280% 1st 5
25 PMCF 0.03280% 1st 5
26 PMCF 0.06280% 1st 5
29 PMCF 0.03280% 1st 5
29-a PMCF
29-b PMCF
29-c PMCF
29-d PMCF
29-e PMCF
29-f PMCF
29-g PMCF
29-h PMCF
31 PMCF 0.03280% 1st 5
33 PMCF 0.03280% 1st 5
36 PMCF 0.03280% 1st 5
37 PMCF 0.03280% 1st 5
37-a PMCF
37-b PMCF
39 PMCF 0.03280% 1st 5
44 PMCF 0.03280% 1st 5
45 PMCF 0.03280% 1st 5
47 PMCF 0.03280% 1st 5
48 PMCF 0.03280% 1st 5
49 PMCF 0.08280% 1st 5
50 PMCF 0.08280% 1st 5
55 PMCF 0.03280% 1st 5
56 PMCF 0.08280% 1st 5
59 PMCF 0.03280% 1st 5
65 PMCF 0.08280% 1st 5
67 PMCF 0.03280% 1st 5
69 PMCF 0.08280% 1st 5
73 PMCF 0.08280% 1st 5
74 PMCF 0.03280% 1st 5
82 PMCF 0.03280% 1st 5
Initial Master
Initial Master Servicing
ID Loan Gurantor Servicer Fee Rate
-------------- --------------------------------------------------------------------------------- -------------- -----------------
1 Vornado Realty L.P. PAR 0.02050%
3 Xxxxxx X. Xxxxx, Xxxx Xxxxxxxx, 540 Investment Company Limited Partnership PAR 0.02050%
6 Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx PAR 0.02050%
8 Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxxxxxx PAR 0.02050%
9 Xxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, C. Xxxxxx Xxxxxxx PAR 0.02050%
10 Xxxxxxx X. Xxxxxxxxxx PAR 0.02050%
11 Corporate Property Associates 15, Inc. PAR 0.02050%
11-a PAR 0.02050%
11-b PAR 0.02050%
11-c PAR 0.02050%
11-d PAR 0.02050%
16 Corporate Property Associates 15, Inc. PAR 0.02050%
25 NANA Development Corporation PAR 0.02050%
26 Xxxx Xxxxxx, Xxx Xxxxx PAR 0.02050%
29 Corporate Property Associates 16-Global Inc. PAR 0.02050%
29-a PAR 0.02050%
29-b PAR 0.02050%
29-c PAR 0.02050%
29-d PAR 0.02050%
29-e PAR 0.02050%
29-f PAR 0.02050%
29-g PAR 0.02050%
29-h PAR 0.02050%
31 Xxxxxx Xxxxx PAR 0.02050%
33 NANA Development Corporation PAR 0.02050%
36 Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Forestar PAR 0.02050%
37 Corporate Property Associates 15, Inc. PAR 0.02050%
37-a PAR 0.02050%
37-b PAR 0.02050%
39 E. Xxxxxx Xxxxxxx, Jr., Xxxx X. Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxx PAR 0.02050%
44 Xxxxxx X. Xxxx PAR 0.02050%
45 Corporate Property Associates 15, Inc. PAR 0.02050%
00 Xxxx X. Xxxxxxx, Xxxxx Xxxxxxxxxxxx, Xxxxxxxxx X. Xxxxx, PAR 0.02050%
48 Xx. Xxxxx Xxxxxx, Xx. Xxx V. Kata, Xx. Xxxxxxxx C. Ganga, Mrs. Lakshmi Ganga, PAR 0.02050%
Choudary C. Ganga and Lakshmi Ganga Revocable Trust Under Trust Agreement dated
3/22/1995 and amend by it 1st Amendment dated 11/8/2004
49 Xxxx Xxxxxx PAR 0.02050%
50 Xxxx Xxxxxx PAR 0.02050%
55 Xxxx X. Xxxxxx PAR 0.02050%
56 Xxxx X. Xxxxxxx PAR 0.02050%
59 NANA Development Corporation PAR 0.02050%
00 Xxxx Xxxxxx Xxxxxxx, Xxx. PAR 0.02050%
67 Xxx X. Xxxxx PAR 0.02050%
69 Xxxxx Land Company PAR 0.02050%
73 Xxxxxxx X. XxXxxxxx, Xx., Xxxxxxx X. Xxxxx PAR 0.02050%
74 J.S.S.R., Inc. PAR 0.02050%
82 Xxxxx X. Xxxxxx, Xx. PAR 0.02050%
SCHEDULE I-B
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
S-I-B-1
ID SELLER LOAN NUMBER PROPERTY NAME ADDRESS
------ -------------------- ---------------------------------------- -------------------------------------------
2 41145 Highland Village 3910-4091 Xxxxxxxxxx Xxxx
0 00000 Xxxxxxx Xxxxxx 000 00xx Xxxxxx XX
7 00000 Xxxxxxxx Xxxxxx Shopping Center 000 Xxxx Xxxxx Xxxx
13 38563 Pine Gate Apartments 00 Xxxxx Xxxxx
20 41314 Lakecrest Apartment Portfolio Various
20-a 41314 Lakecrest Ravine & Shoreline Apartments 0000 Xxxxxxxxx Xxx. & 0000 Xxxxxxxxx Xxxxx
00-x 00000 Xxxxxxxxx Xxxx & Shore Apartments 0000 Xxxxx Xxxxx Xxxx & 0000 Xxxxx Xxxxxx
21 41820 Sheng Portfolio II Various
21-a 41820 Red Lion Manor 00000 Xxxxxxxxx Xxxxxx
21-b 00000 Xxxxxxxxx Xxxxxx Apartments 471, 483 & 000 Xxxxxxxxx Xxxxxx
21-c 41820 Xxxx Place Apartments 1 Xxxx Place
21-d 41820 Lincoln Apartments 000-000 Xxxx Xxxxxx
00-x 00000 Xxxxxxxxxx Apartments 000-000 Xxxx Xxxxxx
23 41773 Sheng Portfolio I Various
23-a 00000 Xxxxxxxx Xxxxxx Apartments 0000 Xxxxx Xxxxxx
00-x 00000 Xxxxxxxx Garden Apartments 000 Xxxx Xxxxxx
00-x 00000 Xxxxxxxx Xxxx Gardens Xxxxxxx S Third & Magnolia Street
23-d 00000 Xxxxxxxx Xxxxxx Apartments 191 & 000 Xxxxxxxx Xxxxxx
00-x 00000 Xxxxxxxxx Apartments 000 Xxxxxxxxx Xxxxxx
24 41190 Xxxxxxxxxx Xxxxx 000-000 Xxxxxxxx Xxxxxx Xxxxxxx
00 00000 Monrovia Marketplace 000-000 Xxxx Xxxxxxxxxx Xxxxx
38 41169 Xxxxxxxx Shopping Center 000 Xxxxxx Xxxx Xxxx
41 41381 Teledyne Xxxxxxxx Building 0000 XxXxxxxxx Xxxxxx
00 00000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx
60 41269 1182 - 0000 Xxxxxxxxxx Xxxxxx 0000-0000 Xxxxxxxxxx Xxxxxx
62 41108 Walgreens Westampton Xxxxxxxx Xxxx & Xxxxxxxxxx Xxxx
00 00000 Buffalo Crossing Shopping Center 9838-9880 Buffalo Speedway
P&I MONTHLY DEBT
ID CITY STATE ZIP CODE ORIGINAL BALANCE CUT-OFF DATE BALANCE SERVICE
------- ---------------------------- ----------- ------------ ------------------- ----------------------- ------------------
2 Xxxxxxx XX 00000 90,000,000 89,808,675 500,277
5 Xxxxxxxxxx XX 00000 50,000,000 49,914,589 307,314
7 Xxxxxxxx Xxxxxxx XX 00000 28,000,000 28,000,000 159,737
00 Xxx Xxxxxx XX 00000 20,000,000 19,977,149 110,701
20 Various MI Various 15,550,000 15,550,000 86,833
20-a Xxxxx Xxxxxx XX 00000 9,400,000 9,400,000
00-x Xxxxxxxxx Xxxx & Xxxxxx Xxxxxx XX 00000 6,150,000 6,150,000
21 Various Various Various 14,500,000 14,500,000 81,839
21-a Xxxxxxxxxxxx XX 00000 4,500,000 4,500,000
21-b Xxxxxxxxxx XX 00000 3,500,000 3,500,000
00-x Xxxxxxxx XX 00000 2,800,000 2,800,000
21-d Xxxxxx XX 00000 2,000,000 2,000,000
21-e Xxxxxx XX 00000 1,700,000 1,700,000
23 Various Various Various 13,500,000 13,500,000 76,195
23-a Xxxxxxxxxxxx XX 00000 4,700,000 4,700,000
23-b Xxxxxx XX 00000 3,600,000 3,600,000
00-x Xxxxxxxx Xxxx XX 00000 2,900,000 2,900,000
23-d Xxxxxxxxxx XX 00000 1,500,000 1,500,000
00-x Xxxxxxxxx XX 00000 800,000 800,000
24 Xxxxxxxxxx XX 00000 12,250,000 12,212,766 70,835
28 Xxxxxxxx XX 00000 9,800,000 9,789,374 55,951
38 Xxxxxxx XX 00000 6,250,000 6,232,287 37,472
41 Xxx Xxxxxxx XX 00000 5,700,000 5,700,000 32,418
54 Xxxxxx XX 00000 4,500,000 4,500,000 28,807
60 Xxxxxxx XX 00000 4,200,000 4,200,000 24,111
62 Xxxxxxxxxx XX 00000 3,850,000 3,850,000 24,235
68 Xxxxxxx XX 00000 3,500,000 3,500,000 19,939
ORIGINAL TERM
TO MATURITY
ID IO MONTHLY DEBT SERVICE MORTGAGE RATE INTEREST ACCRUAL BASIS ARD LOAN (Y/N) MATURITY DATE OR ARD OR ARD (MOS.)
------ ----------------------- --------------- ------------------------ ---------------- ---------------------- -------------
2 NAP 5.30900% Actual/360 No 10/01/14 120
5 NAP 5.99700% Actual/360 Yes 04/01/19 180
7 131,133 5.54300% Actual/360 No 05/01/19 180
13 NAP 5.27100% Actual/360 No 11/01/14 120
20 70,290 5.35000% Actual/360 No 11/01/14 120
20-a
20-b
21 66,720 5.44600% Actual/360 Yes 11/01/14 120
21-a
21-b
21-c
21-d
21-e
23 62,118 5.44600% Actual/360 Yes 11/01/14 120
23-a
23-b
23-c
23-d
23-e
24 NAP 5.66600% Actual/360 No 09/01/14 120
28 NAP 5.55000% Actual/360 No 11/01/14 120
38 NAP 6.00000% Actual/360 No 09/01/14 120
41 26,560 5.51500% Actual/360 Yes 11/01/14 120
54 NAP 5.93200% Actual/360 No 12/01/14 120
60 NAP 5.60000% Actual/360 No 12/01/14 120
62 NAP 5.93200% Actual/360 No 12/01/14 120
68 16,353 5.53000% Actual/360 No 10/01/14 120
STATED REMAINING ORIGINAL REMAINING
TERM TO MATURITY AMORTIZATION AMORTIZATION CROSSED WITH CROSSED
ID OR ARD (MOS.) TERM (MOS.) TERM (MOS.) OTHER LOANS LOAN ID PREPAYMENT PROVISIONS (# OF PAYMENTS)
------ ---------------- ------------- ------------- ------------ ------- ------------------------------------------------
2 118 360 358 NAP NAP GRTR1% or YM(119)/Open(1)
5 172 360 (8) 352 (8) NAP NAP LO(37)/Defeasance(137)/YM(5)/Open(1) (9)
7 173 360 360 NAP NAP LO(47)/Defeasance(130)/Open(3)
13 119 360 359 NAP NAP LO(25)/GRTR1% or YM(92)/Open(3)
20 119 360 360 NAP NAP LO(25)/Defeasance(94)/Open(1)
20-a
20-b
21 119 360 360 NAP NAP LO(47)/Defeasance(72)/Open(1)
21-a
21-b
21-c
21-d
21-e
23 119 360 360 NAP NAP LO(47)/Defeasance(72)/Open(1)
23-a
23-b
23-c
23-d
23-e
24 117 360 357 NAP NAP LO(27)/Defeasance(92)/Open(1)
28 119 360 359 NAP NAP LO(25)/Defeasance(94)/Open(1)
38 117 360 357 NAP NAP LO(47)/Defeasance(72)/Open(1)
41 119 360 360 NAP NAP LO(25)/Defeasance(94)/Open(1)
54 120 300 300 NAP NAP LO(48)/Defeasance(71)/Open(1)
60 120 360 360 NAP NAP LO(47)/Defeasance(72)/Open(1)
62 120 312 312 NAP NAP LO(48)/Defeasance(71)/Open(1)
68 118 360 360 NAP NAP LO(47)/Defeasance(72)/Open(1)
OWNERSHIP ADMINISTRATIVE GRACE LETTER
ID INTEREST LOAN SELLER FEE RATE DUE DATE PERIOD OF CREDIT LETTER OF CREDIT DESCRIPTION
------ ---------------- ------------- -------------- ---------- ------ ---------- --------------------------------
2 Fee BSCMI 0.07280% 1st 0
5 Fee BSCMI 0.06280% 1st 0
7 Fee BSCMI 0.04280% 1st 5 1,000,000 Letter of credit reserve for Genaurdi commencement
13 Fee BSCMI 0.03280% 1st 5
20 Fee BSCMI 0.03280% 1st 5
20-a Fee BSCMI
20-b Fee BSCMI
21 Fee BSCMI 0.03280% 1st 5
21-a Fee BSCMI
21-b Fee BSCMI
21-c Fee BSCMI
21-d Fee BSCMI
21-e Fee BSCMI
23 Fee BSCMI 0.03280% 1st 5
23-a Fee BSCMI
23-b Fee BSCMI
23-c Fee BSCMI
23-d Fee BSCMI
23-e Fee BSCMI
24 Fee BSCMI 0.03280% 1st 5
28 Fee BSCMI 0.03280% 1st 5
38 Fee BSCMI 0.07280% 1st 5
41 Fee BSCMI 0.03280% 1st 5
54 Leasehold BSCMI 0.03280% 1st 5
60 Fee/Leasehold BSCMI 0.03280% 1st 5
62 Fee BSCMI 0.03280% 1st 5
68 Fee BSCMI 0.03280% 1st 5
INITIAL MASTER
INITIAL MASTER SERVICING FEE
ID LOAN GURANTOR SERVICER RATE
-------------- ----------------------------------------------------------------------- --------------------- --------------------
2 Trans American Holdings, Inc. and Xxxxxx Xxxxxxxx Xxxxx Fargo 0.02050%
5 Xxxxxxxx Xxxxx Company, Inc. Xxxxx Fargo 0.06050%
0 Xxxx Xxxxxxx Xxxxx Fargo 0.02050%
13 Xxxx Xxxxxxxx Xxxxx Fargo 0.02050%
20 Xxxxxxx X. Xxxxx Xxxxx Fargo 0.02050%
20-a Xxxxx Fargo 0.02050%
20-b Xxxxx Fargo 0.02050%
21 Xxxxxx Xxxxxxx Xxxxx Fargo 0.02050%
21-a Xxxxx Fargo 0.02050%
21-b Xxxxx Fargo 0.02050%
21-c Xxxxx Fargo 0.02050%
21-d Wells Fargo 0.02050%
21-e Xxxxx Fargo 0.02050%
23 Xxxxxx Xxxxxxx Xxxxx Fargo 0.02050%
23-a Xxxxx Fargo 0.02050%
23-b Xxxxx Fargo 0.02050%
23-c Xxxxx Fargo 0.02050%
23-d Wells Fargo 0.02050%
23-e Xxxxx Fargo 0.02050%
24 Xxxxxxxx Xxxx and Xxxx Xxxxxx Xxxxx Fargo 0.02050%
28 California Drive-in Theatres, Inc. and Xxxxxxx Xxxxxx Xxxxx Fargo 0.02050%
38 AMC Xxxxxxxx Group, Xxxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxx Xxxxxx Xxxxx Fargo 0.02050%
41 Xxxxxxx X. Xxxxx Xxxxx Fargo 0.02050%
54 Xxxx Xxxxx and Xxxxxxx Xxxx Xxxxx Fargo 0.02050%
60 Xxxxx Xxxxxxxxx and Xxxx Xxxxxx Xxxxx Fargo 0.02050%
62 Xxxx Xxxxx and Xxxxxxx Xxxx Xxxxx Fargo 0.02050%
68 Xxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxx Xxxxx Fargo 0.02050%
SCHEDULE I-C
SCHEDULE OF WFB POOLED MORTGAGE LOANS
S-I-C-1
ID SELLER LOAN NUMBER PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
4 510901682 Hilton Sandestin Beach Golf Resort & Spa 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx
12 510901663 Centrum Shopping Center 00000 Xxxxxxx Xxxxxxx
14 310901541 Lakeville Shopping Center 0000-0000 000xx Xxxxxx West, 17557-17671 Glasgow Avenue,
17544-17701 Cedar Avenue, and 17502-17506 Xxxx Boulevard
15 310901772 Village at Chestnut Hill 631-683 VFW Parkway
18 310901692 Friendly Village 0000 X. XxXxxxx Xxxxxx
19 310901741 Xxxxxxx Crossing 000 Xxxxxxxx Xxxx Xxxx
27 310901675 Xxxx Xxxx Drive 0000-0000 Xxxx Xxxx Xxxxx
32 310901672 Circuit City Store 0000 0xx Xxxxxx
34 310901718 Little Xxxxxxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxx 0000 Xxxxx
35 310901677 0000 Xxxxxxxx Xxx Office 0000 Xxxxxxxx Xxxxxx
40 310901668 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxx Xxxxxxxxx
43 310901619 8920 & 8957 Canyon Falls 8920 and 0000 Xxxxxx Xxxxx Xxxxxxxxx
46 310901785 Boat Canyon Village 000 X. Xxxxxxx Xxxxx Xxxxxxx
00 310901768 Inverness & Zephyrhills Retail Centers Various
52-a 310901768A Zephyrhills Retail Center 0000 Xxxx Xxxxxxxxx
52-b 310901768B Inverness Retail Center 0000 X. Xxxx to Lakes Highway
57 610901720 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxxx Xxxxxx
61 310901694 Marketplace West Phase I 9175 and 0000 Xxxxxx Xxxxxx XX
63 620901612 Ridgeview Marketplace 6042 - 6058 & 5988 - 0000 Xxxxxxx Xxxxx Xxxxxxxxx
64 310901641 Plaza Farmington III 0000-0000 X. Xxxx Xxxxxx
66 410901660 Walgreens- Albuquerque 0000 Xxxxxxxx Xxxxxxxxx XX
70 410901701 A-American Bouquet Canyon 00000 Xxxxxxx Xxxxxx Xxxx
71 410901234 San Dimas Properties 000 Xxxxx Xxxx Xxxx Xxxxxx & 975 Overland Court
72 620901630 Sentry Storage 0000 Xxxxxxx Xxxxxxx N., 30 W. Sentry Court, and 0000 X.
Xxxx'x Xxxxxxx Xxxx
75 410901695 A-American Cathedral City 00000 Xxxxxxxxx Xxxxxx Xxxxx
76 410901591 Walgreens Xxxxxx, XX 00000 14 Mile Road
77 620901725 Valli Hi Shopping Center 000-000 Xxxxx Xxxxxx
78 620901746 Xxxxx Adobe Retail 4990 Xxxxx Adobe Road
79 410901754 Xxxxxxxxxxxxx Xxxxxxxx Xxxxxx 0 Xxxxx Xxxx
80 620901757 Hastings Entertainment Center 0000 XxXxxxxxx Xxxxxxxxx
81 410901766 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxxxxxx Boulevard
83 410901557 Sunrise Village Pads and Zinfandel Grille 0000 Xxxxxxx Xxxxxx / 5437 & 0000 Xxxxxxx Xxxxxxxxx and 0000
Xxxx Xxxx Xxxxxxxxx
84 410901501 Natomas Gardens 0000 Xxxxxxxxx Xxxxxxxxx
85 410901676 Superstition Springs Square Medical Office 0000-0000 Xxxx Xxxxxxxx Xxxxxx
86 620901722 00000 Xxxxxxx Xxxx 00000 Xxxxxxx Xxxx
00 410901752 Checkers Strip Shopping Center 000 Xxxxx Xxx and 000 Xxxxxx Xxxxxx
88 410901629 Empire Drive Medical Office 4101 & 0000 Xxxxxx Xxxxx
89 410901334 Xxxxx Xxxxx Xxxxxxxxxx 00000 & 00000 Xxxxx Xxxxx
90 410901783 4433 Xxxx Xxx Xxxxx 0000 Xxxx Xxx Xxxxx Xxxxxx
92 410901433 Golden Gem Building 0000 Xxxxxxxxxx Xxxxxx
93 620901777 Unicorn Industrial 0000 Xxxxxxx Xxxx
00 000000000 Xxxx Xxxxxxx Place Apartments 1648 West Alabama
95 410901792 Xxxxxxxx Apartments 0000 Xxxxx 0xx Xxxxxx
X&X MONTHLY DEBT
ID CITY STATE ZIP CODE ORIGINAL BALANCE CUT-OFF DATE BALANCE SERVICE
------------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx XX 00000 54,300,000 54,056,416 335,886
12 Xxxxxxxxx XX 00000 20,000,000 20,000,000 NAP
14 Xxxxxxxxx XX 00000 19,555,207 19,511,047 105,537
00 Xxxxxxxx Xxxx XX 00000 19,000,000 19,000,000 106,335
18 Xxxxxxx XX 00000 17,400,000 17,363,175 96,947
19 Xxxxxxx XX 00000 17,000,000 16,967,504 99,748
27 Xxxxxxxx XX 00000 11,350,000 11,316,800 66,958
32 Xxxxx Xxxxxx XX 00000 7,500,000 7,484,229 41,928
34 Xxxxx XX 00000 7,000,000 6,992,338 39,745
35 Xxxxxxxx XX 00000 6,825,000 6,825,000 36,805
40 Xxxxxx XX 00000 5,800,000 5,772,527 35,410
43 Xxxxxxxxx XX 00000 5,650,000 5,633,089 32,936
46 Xxxxxx Xxxxx XX 00000 5,300,000 5,289,644 30,761
52 Various FL Various 4,850,000 4,850,000 31,814
52-a Xxxxxxxxxxx XX 00000 2,500,000 2,500,000
52-b Xxxxxxxxx XX 00000 2,350,000 2,350,000
57 Xxxxxx XX 00000 4,300,000 4,300,000 24,550
61 Xxxxxx XX 00000 4,000,000 3,992,686 23,982
63 Xxxxxxxx Xxxxxxx XX 00000 3,750,000 3,739,100 22,195
64 Xxxxxxxxxx XX 00000 3,700,000 3,692,368 20,892
66 Xxxxxxxxxxx XX 00000 3,667,000 3,656,673 22,056
70 Xxxxx Xxxxxxx XX 00000 3,475,000 3,458,834 21,029
71 Xxx Xxxxx XX 00000 3,500,000 3,420,959 20,788
72 Xxxxxxx XX 00000 3,300,000 3,282,686 21,769
75 Xxxxxxxxx Xxxx XX 00000 3,150,000 3,140,410 19,063
76 Xxxxxx XX 00000 3,166,000 3,136,838 21,352
77 Xxxxxxxx Xxxxxxx XX 00000 3,000,000 2,996,826 17,374
78 Xxxxxx Xxxxx XX 00000 2,745,000 2,740,136 16,706
79 Xxxxxxxxxxxxx XX 00000 2,480,000 2,477,366 14,331
00 Xxxx Xxxxxx Xxxx XX 00000 2,400,000 2,400,000 13,854
81 Xxx Xxxxx XX 00000 2,400,000 2,393,481 15,493
00 Xxxxxx Xxxxxxx xxx Xxxxxxxxxx XX 00000 2,300,000 2,282,784 14,028
84 Xxxxxxxxxx XX 00000 2,250,000 2,238,590 12,761
85 Xxxx XX 00000 2,200,000 2,191,023 14,377
86 Xxx Xxxx XX 00000 2,033,000 2,029,266 12,163
87 Xxxxxxxx XX 00000 1,915,000 1,913,218 11,916
88 Xxxxxxxxxxx XX 00000 1,815,000 1,808,164 10,754
00 Xxxx xx Xxxxxxxx XX 00000 1,785,000 1,754,948 11,479
90 Xxxxxxx XX 00000 1,700,000 1,698,157 9,706
92 Xxxxxx XX 00000 1,700,000 1,683,594 10,116
93 Xxxxxxxxxxx XX 00000 1,100,000 1,098,911 6,616
94 Xxxxxxx XX 00000 875,000 874,193 5,473
95 Xxxx XX 00000 655,000 652,838 5,699
IO MONTHLY ORIGINAL TERM TO
ID DEBT SERVICE MORTGAGE RATE INTEREST ACCRUAL BASIS ARD LOAN (Y/N) MATURITY DATE OR ARD MATURITY OR ARD (MOS.)
------------------------------------------------------------------------------------------------------------------------------------
4 NAP 5.57500% Actual/360 No 09/01/14 120
12 86,856 5.14000% Actual/360 No 09/01/09 60
14 NAP 5.04000% Actual/360 No 07/01/14 117 (11)
15 86,206 5.37000% Actual/360 No 10/01/14 120
18 NAP 5.33000% Actual/360 No 10/01/14 120
19 NAP 5.80000% Actual/360 No 10/01/14 120
27 NAP 5.85000% Actual/360 No 09/01/14 120
32 NAP 5.36000% Actual/360 No 10/01/14 120
34 NAP 5.50000% Actual/360 No 11/01/14 120
35 29,063 5.04000% Actual/360 No 10/01/11 84
40 NAP 5.44000% 30/360 No 09/01/10 72
43 NAP 5.74000% Actual/360 No 09/01/14 120
46 NAP 5.70000% Actual/360 No 10/01/14 120
52 NAP 6.19000% Actual/360 No 12/01/14 120
52-a
52-b
57 20,164 5.55000% Actual/360 No 12/01/14 120
61 NAP 6.00000% Actual/360 No 10/01/14 120
63 NAP 5.88000% Actual/360 No 09/01/14 120
64 NAP 5.45000% Actual/360 No 10/01/14 120
66 NAP 6.03000% Actual/360 No 09/01/14 120
70 NAP 5.35000% Actual/360 No 09/01/09 60
71 NAP 5.16000% Actual/360 No 10/01/13 120
72 NAP 6.25000% Actual/360 No 08/01/14 120
75 NAP 5.35000% Actual/360 No 10/01/09 60
76 NAP 5.26000% Actual/360 No 08/01/14 120
77 NAP 5.68000% Actual/360 No 11/01/14 120
78 NAP 6.14000% Actual/360 No 10/01/14 120
79 NAP 5.66000% Actual/360 No 11/01/11 84
80 NAP 5.65000% Actual/360 No 12/01/14 120
81 NAP 6.02000% Actual/360 No 10/01/14 120
83 NAP 5.43000% Actual/360 No 07/01/14 120
84 NAP 5.49000% Actual/360 No 07/01/14 120
85 NAP 6.15000% Actual/360 No 09/01/14 120
86 NAP 5.98000% Actual/360 No 10/01/14 120
87 NAP 6.35000% Actual/360 No 11/01/14 120
88 NAP 5.89000% Actual/360 No 08/01/14 120
89 NAP 5.98000% Actual/360 No 12/01/13 120
90 NAP 5.55000% Actual/360 No 11/01/14 120
92 NAP 5.93000% Actual/360 No 02/01/14 120
93 NAP 6.03000% Actual/360 No 11/01/14 120
94 NAP 6.40000% Actual/360 No 11/01/14 120
95 NAP 6.48000% Actual/360 No 11/01/19 180
STATED REMAINING REMAINING
TERM TO MATURITY ORIGINAL AMORTIZATION AMORTIZATION CROSSED WITH CROSSED LOAN
ID OR ARD (MOS.) TERM (MOS.) TERM (MOS.) OTHER LOANS ID
------------------------------------------------------------------------------------------------------------------------------------
4 117 300 297 NAP NAP
12 57 0 0 NAP NAP
14 115 (11) 360 (11) 358 (11) NAP NAP
15 118 360 360 NAP NAP
18 118 360 358 NAP NAP
19 118 360 358 NAP NAP
27 117 360 357 NAP NAP
32 118 360 358 NAP NAP
34 119 360 359 NAP NAP
35 82 360 360 NAP NAP
40 69 300 297 NAP NAP
43 117 360 357 NAP NAP
46 118 360 358 NAP NAP
52 120 300 300 NAP NAP
52-a
52-b
57 120 360 360 NAP NAP
61 118 360 358 NAP NAP
63 117 360 357 NAP NAP
64 118 360 358 NAP NAP
66 117 360 357 NAP NAP
70 57 300 297 NAP NAP
71 106 300 286 NAP NAP
72 116 300 296 NAP NAP
75 58 300 298 NAP NAP
76 116 240 236 NAP NAP
77 119 360 359 NAP NAP
78 118 360 358 NAP NAP
79 83 360 359 NAP NAP
80 120 360 360 NAP NAP
81 118 300 298 NAP NAP
83 115 300 295 NAP NAP
84 115 360 355 NAP NAP
85 117 300 297 NAP NAP
86 118 360 358 NAP NAP
87 119 360 359 NAP NAP
88 116 360 356 NAP NAP
89 108 300 288 NAP NAP
90 119 360 359 NAP NAP
92 110 360 350 NAP NAP
93 119 360 359 NAP NAP
94 119 360 359 NAP NAP
95 179 180 179 NAP NAP
OWNERSHIP ADMINISTRATIVE DUE GRACE
ID PREPAYMENT PROVISIONS (# OF PAYMENTS) INTEREST LOAN SELLER FEE RATE DATE PERIOD LETTER OF CREDIT
------------------------------------------------------------------------------------------------------------------------------------
4 LO(27)/Defeasance(89)/Open(4) Fee WFB 0.03280% 1st 5
12 LO(27)/Defeasance(29)/Open(4) Fee WFB 0.03280% 1st 5
14 LO(32)/Defeasance(78)/Open(7) Fee WFB 0.03280% 1st 5
15 LO(26)/Flex(90)/Open(4) Fee WFB 0.03280% 1st 5
18 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
19 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.03280% 1st 5
27 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
32 LO(35)/Flex(81)/Open(4) Fee WFB 0.03280% 1st 5
34 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
35 LO(35)/Defeasance(45)/Open(4) Fee WFB 0.03280% 1st 5
40 LO(36)/Defeasance(29)/Open(7) Fee WFB 0.03280% 1st 5
43 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
46 LO(35)/Flex(81)/Open(4) Fee WFB 0.03280% 1st 5
52 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
52-a Fee WFB
52-b Fee WFB
57 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.08280% 1st 5
61 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
63 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.08280% 1st 5
64 LO(35)/Defeasance(78)/Open(7) Fee WFB 0.03280% 1st 5
66 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.03280% 1st 5
70 LO(35)/Flex(21)/Open(4) Fee WFB 0.03280% 1st 5
71 LO(38)/Flex(78)/Open(4) Fee WFB 0.05280% 1st 5
72 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.10280% 1st 5
75 LO(35)/Flex(21)/Open(4) Leasehold WFB 0.05280% 1st 5
76 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.05280% 1st 5
77 LO(35)/Flex(81)/Open(4) Fee WFB 0.10280% 1st 5
78 LO(35)/Flex(81)/Open(4) Fee WFB 0.10280% 1st 5
79 LO(35)/Defeasance(45)/Open(4) Fee WFB 0.05280% 1st 5
80 LO(35)/Flex(81)/Open(4) Fee WFB 0.10280% 1st 5
81 LO(35)/Flex(81)/Open(4) Fee WFB 0.05280% 1st 5
83 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.07280% 1st 5
84 LO(35)/Defeasance(82)/Open(3) Fee WFB 0.07280% 1st 5
85 LO(35)/Flex(81)/Open(4) Fee WFB 0.07280% 1st 5
86 LO(35)/Flex(81)/Open(4) Fee WFB 0.12280% 1st 5
87 LO(35)/Defeasance(81)/Open(4) Fee WFB 0.07280% 1st 5
88 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.09280% 1st 5
89 LO(36)/Flex(80)/Open(4) Fee WFB 0.07280% 1st 5
90 LO(35)/Flex(81)/Open(4) Fee WFB 0.11280% 1st 5
92 LO(35)/Flex(81)/Open(4) Fee WFB 0.11280% 1st 5
93 LO(35)/Defeasance(83)/Open(2) Fee WFB 0.15280% 1st 5
94 LO(35)/Flex(81)/Open(4) Fee WFB 0.09280% 1st 5
95 LO(35)/Flex(138)/Open(7) Fee WFB 0.20280% 1st 5
LETTER OF INITIAL INITIAL MASTER
ID CREDIT DESCRIPTION LOAN GURANTOR MASTER SERVICER SERVICING FEE RATE
------------------------------------------------------------------------------------------------------------------------------------
4 Xxxxx Xxxxxx Xx. and Xxxx Alias Xxxxx Fargo 0.02050%
12 Xxxxx Xxxxx and Xxxxxxx Xxxxxx and Xxxx XxXxxx Xxxxx Fargo 0.02050%
14 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx Xxxxx Fargo 0.02050%
15 Xxxxxx Xxxxxx Xxxxx Fargo 0.02050%
18 Xxxxx Xxxxx, Xxxxxxx Xxx Xxx, Xxxxxx X Xxx Xxxxx Fargo 0.02050%
19 Xxxxxxx Xxxxx Xxxxx Fargo 0.02050%
00 Xxxxxx Xx. Xxxx Xxxxx Xxxxx 0.02050%
32 Xxxxx Xxxxxxx Xxxxx Fargo 0.02050%
34 Xxxxxxx X. Xxxxxxxxxxx Xxxxx Fargo 0.02050%
35 Xxxx Xxxxxx, Xxxx Polite, Xxxxxx Xxxxx Xxxxx Fargo 0.02050%
40 PNL Asset Management, X.X. Xxxxx Fargo 0.02050%
43 Xxxxx Xxxxxxx & Xxxxxx Xxxxxxx Xxxxx Fargo 0.02050%
46 Xxxx X. Xxxxxxx, A. Xxxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxx X. Xxxxxx Xxxxx Fargo 0.02050%
52 Xxxxxx Xxxxxx DMD and Xxxxxxx Xxx Xxxxxx Xxxxx Fargo 0.02050%
52-a Xxxxx Fargo 0.00000%
52-b Xxxxx Fargo 0.00000%
57 Xxxxxxx X. Xxxx Xxxxx Fargo 0.03050%
61 Xxxx Xxxxx Xxxxx Fargo 0.02050%
63 Xxxxxxx X. X'Xxxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, and Xxxxx Xxxxxx Xxxxx Fargo 0.03050%
64 Xxxxxx and Xxxxx Xxxxxxxxxxx Xxxxx Fargo 0.02050%
66 Xxxxx Xxxxxxxx Xxxxx Fargo 0.02050%
70 Xx Xxxxx and Xxxxx Xxxxx Xxxxx Fargo 0.02050%
71 Xx. Xxxxxx X. Xxxxx & Xx. Xxxxx X. Xxxx Xxxxx Fargo 0.04050%
72 Xxxxxxx X. Xxx and Xxxxx Xxx Xxxxx Fargo 0.05050%
75 Xx Xxxxx, Xxxxx Xxxxx, and Xxx Xxxxx Xxxxx Fargo 0.04050%
76 Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx Xxxxx Fargo 0.04050%
77 Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxx Xxxxx Fargo 0.05050%
78 X.X. Xxxx, Xxxxx X. Xxxxxxxx Xxxxx Fargo 0.05050%
79 Xxxxxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxxx Xxxxx Fargo 0.04050%
80 Xxxx Xxxx, Xxxxxxx Xxxxxx Xxxxx Fargo 0.05050%
81 Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx Xxxxx Fargo 0.04050%
83 Xxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx Xxxxx Fargo 0.06050%
84 Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx and Xxxxxx Xxxxxx Xxxxx Fargo 0.06050%
85 Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxx Xxxxx Fargo 0.06050%
86 Xxxxxxx X. Xxxxx and Xxxx Xxxxxxxx Xxxxx Fargo 0.07050%
87 Xxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx Xxxxx Fargo 0.06050%
88 Xxxxxx X. Xxxxx Xxxxx Fargo 0.08050%
89 Xxxxxx X. Xxxxxxx, D. Xxxxxx Xxxxxxxx, and Xxxxxx Xxxxxx Xxxxx Fargo 0.06050%
90 Xxxx X. Xxxxxxxxx Xxxxx Fargo 0.10050%
92 Xxxxx X. Xxxxxxx Xxxxx Fargo 0.10050%
93 Xxxxxx X. Xxxxx Xxxxx Fargo 0.14050%
94 Xxxx X. Xxxxxx Xxxxx Fargo 0.08050%
95 Xxxxx Xxxxx Xxxxx Fargo 0.19050%
SCHEDULE I-D
SCHEDULE OF NATIONWIDE POOLED MORTGAGE LOANS
S-I-D-1
ID SELLER LOAN NUMBER PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
17 00-1100670 Tampa Hilton 0000 Xxxxx Xxxx Xxxxxx
22 00-1100381 BJ's Wholesale Club at Quartermaster Plaza 0000 X. Xxxxxx Xxxxxx
30 00-1100666 Nagog Xxxx 0, 0 & 00 Xxxxx Xxxx and 000 Xxxxx Xxxx
42 00-1100290 Springs Business Park 4405, 4425, and 0000 Xxxxx Xxxxxxxx Xxxxxx
51 00-1100348 Covington Walgreens Center NEC XX 000xx Xxxxxx & 000xx Xxxxxx XX
53 00-1100609 Knightboxx Walgreens 0000 Xxxxxxxx Xxxxxxxxx
58 00-1100376 Centerville Marketplace 000-000 X. Xxxxxx Xxxxx Xxxxx and 000-000 X. Xxxxxxxx Xxxx
91 00-1100395 Xxxxxxx - Xxxx Xxxxx 0000 Xxxx Xxxxxx Xxxxxx
X&X MONTHLY DEBT
ID CITY STATE ZIP CODE ORIGINAL BALANCE CUT-OFF DATE BALANCE SERVICE IO MONTHLY DEBT SERVICE
------------------------------------------------------------------------------------------------------------------------------------
17 Xxxxx XX 00000 17,600,000 17,600,000 102,150 NAP
22 Xxxxxxxxxxxx XX 00000 14,500,000 14,456,881 88,956 NAP
30 Xxxxx XX 00000 8,400,000 8,400,000 46,854 NAP
42 Xxxxxxxx Xxxxxxx XX 00000 5,750,000 5,649,669 34,457 NAP
51 Xxxxxxxxx XX 00000 5,000,000 4,989,114 35,677 NAP
00 Xxxxxx Xxxx XX 00000 4,600,000 4,593,517 28,218 NAP
58 Xxxxxxxxxxx XX 00000 4,280,000 4,238,963 25,296 NAP
91 Xxxxx XX 00000 1,700,000 1,687,732 13,639 NAP
STATED REMAINING
ORIGINAL TERM TO MATURITY OR ARD TERM TO MATURITY
ID MORTGAGE RATE INTEREST ACCRUAL BASIS ARD LOAN (Y/N) MATURITY DATE OR ARD (MOS.) OR ARD (MOS.)
------------------------------------------------------------------------------------------------------------------------------------
17 5.70000% Actual/360 No 12/01/14 120 120
22 5.49000% Actual/360 No 10/05/14 120 118
30 5.34000% Actual/360 No 12/05/14 120 120
42 5.25000% Actual/360 No 01/05/09 60 49
51 5.95000% 30/360 No 11/01/24 240 239
53 5.67000% Actual/360 No 11/05/14 120 119
58 5.11000% Actual/360 No 06/01/14 120 114
91 5.22000% Actual/360 No 10/01/19 180 178
REMAINING
ORIGINAL AMORTIZATION AMORTIZATION TERM CROSSED WITH CROSSED LOAN
ID TERM (MOS.) (MOS.) OTHER LOANS ID PREPAYMENT PROVISIONS (# OF PAYMENTS)
------------------------------------------------------------------------------------------------------------------------------------
17 360 360 NAP NAP LO(24)/Defeasance(91)/Open(5)
22 300 298 NAP NAP LO(26)/Defeasance(89)/Open(5)
30 360 360 NAP NAP LO(24)/Defeasance(91)/Open(5)
42 300 289 NAP NAP LO(35)/Defeasance(21)/Open(4)
51 240 239 NAP NAP LO(25)/Defeasance(211)/Open(4)
53 312 311 NAP NAP LO(25)/Defeasance(90)/Open(5)
58 300 294 NAP NAP LO(30)/Defeasance(86)/Open(4)
91 180 178 NAP NAP LO(26)/Defeasance(150)/Open(4)
ID OWNERSHIP INTEREST LOAN SELLER ADMINISTRATIVE FEE RATE DUE DATE GRACE PERIOD LETTER OF CREDIT
------------------------------------------------------------------------------------------------------------------------------------
17 Fee Nationwide 0.11780% 1st 5
22 Fee/Leasehold Nationwide 0.11780% 5th 5 once per loan year
30 Fee Nationwide 0.09780% 5th 5 once per loan year
42 Fee Nationwide 0.11780% 5th 5 once per loan year
51 Fee Nationwide 0.11780% 1st 0
53 Fee Nationwide 0.11780% 5th 5 once per loan year
58 Leasehold Nationwide 0.11780% 1st 5 once per loan year
91 Fee Nationwide 0.11780% 1st 0
INITIAL MASTER INITIAL MASTER
ID LETTER OF CREDIT DESCRIPTION LOAN GURANTOR SERVICER SERVICING FEE RATE
------------------------------------------------------------------------------------------------------------------------------------
17 Highland Hospitality Corporation Xxxxx Fargo 0.03050%
22 Forest City Enterprises, Inc. Xxxxx Fargo 0.03050%
30 Kauai Village Associates Xxxxx Fargo 0.03050%
42 Xxxxxx X. XxXxxxxx III Xxxxx Fargo 0.03050%
51 Xxxxx X. Xxxxxxxx and Xxxx Xxxxxx Xxxxx Fargo 0.03050%
53 Xxxxx Xxxxxxxx Xxxxx Fargo 0.03050%
58 Xxxxxxx X. Xxxxxx Xxxxx Fargo 0.03050%
91 Mac X. Xxxxx, Xx. Xxxxx Fargo 0.03050%
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(UNDER SECTION 2.02(a) OF THIS AGREEMENT)
[There are no exceptions.]
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Control Sub- Term.
Number Pooled Pooled Cut-off Date Servicing Without
(Prospectus Mortgage Loan Mortgage Principal Fee Cause
ID) Seller Number Loan/Property Name Loan Seller Balance Rate Fee
----------- ------------- ------------------ ----------- ------------ --------- -------
2 41145 Highland Village BSCMI $89,808,675 0.04% None
3 6105594 Eton Collection PMCF $56,936,666 0.08% None
6 6105604 BAMC Building PMCF $32,950,595 0.02% None
7 00000 Xxxxxxxx Xxxxxx Shopping Center BSCMI $28,000,000 0.01% None
9 6105368 The Point at 53rd PMCF $22,900,000 0.05% None
26 6105709 Metropolitan Apartments PMCF $11,486,259 0.03% None
38 41169 Xxxxxxxx Shopping Center BSCMI $6,232,287 0.04% None
49 6105634 Antonio Parkway PMCF $5,000,000 0.05% None
50 6105620 Pioneer Industrial II PMCF $4,990,123 0.05% None
56 6105592 Holiday Park Manufactured Home Community PMCF $4,429,924 0.05% None
65 6105578 Los Alamos Business Center PMCF $3,684,776 0.05% None
69 6105635 Hunter Technology Park PMCF $3,496,346 0.05% None
73 0000000 Xxxxxxxx Xxxxx Shopping Center PMCF $3,270,317 0.05% None
17 00-1100670 Tampa Hilton Nationwide $17,600,000 0.06% None
22 00-1100381 BJ's Wholesale Club at Quartermaster Plaza Nationwide $14,456,881 0.06% None
30 00-1100666 Nagog Park Nationwide $8,400,000 0.04% None
42 00-1100290 Springs Business Park Nationwide $5,649,669 0.06% None
51 00-1100348 Xxxxxxxxx Walgreens Center Nationwide $4,989,114 0.06% None
53 00-1100609 Knightboxx Walgreens Nationwide $4,593,517 0.06% None
58 00-1100376 Centerville Marketplace Nationwide $4,238,963 0.06% None
91 00-1100395 Xxxxxxx - Xxxx Xxxxx Nationwide $1,687,732 0.06% None
Control
Number
(Prospectus
ID) Sub-Servicer
----------- ----------------
2 X.X. Melody Company of Texas, LP
3 Prudential Mortgage Capital Company LLC
("PMCC")
6 PMCC
7 Xxxxx, Kramer, Pettit, Xxxxxxxxxx
& Associates, Inc. ("CKPP")
9 PMCC
26 PMCC
38 CKPP
49 PMCC
50 PMCC
56 PMCC
65 PMCC
69 PMCC
73 PMCC
17 LJ Melody & Company, Inc.
22 Wachovia Xxxxx Partners
30 Xxxxxxxx & Grew, Inc.
42 Northmarq Capital, Inc.
51 LJ Melody & Company, Inc.
53 LJ Melody & Company, Inc.
58 Bonneville Mortgage Company
91 LJ Melody & Company, Inc.
S-III-1
SCHEDULE IV
REFERENCE RATES
INTEREST ACCRUAL PERIOD(1) REFERENCE RATE (%) INTEREST ACCRUAL PERIOD(1) REFERENCE RATE (%)
-------------------------- ------------------ -------------------------- ------------------
December 2004 5.44508 December 2008 5.44361
January 2005 5.44507 January 2009 5.44533
February 2005 5.44560 February 2009 5.44613
March 2005 5.62567 March 2009 5.62593
April 2005 5.44503 April 2009 5.44518
May 2005 5.62565 May 2009 5.62583
June 2005 5.44501 June 2009 5.44509
July 2005 5.62562 July 2009 5.62574
August 2005 5.62561 August 2009 5.62569
September 2005 5.44497 September 2009 5.45314
October 2005 5.62559 October 2009 5.63459
November 2005 5.44495 November 2009 5.45361
December 2005 5.44494 December 2009 5.45357
January 2006 5.44493 January 2010 5.45353
February 2006 5.44551 February 2010 5.45443
March 2006 5.62554 March 2010 5.63440
April 2006 5.44489 April 2010 5.45341
May 2006 5.62549 May 2010 5.63431
June 2006 5.44481 June 2010 5.45333
July 2006 5.62541 July 2010 5.63423
August 2006 5.62537 August 2010 5.63419
September 2006 5.44470 September 2010 5.45361
October 2006 5.62529 October 2010 5.63549
November 2006 5.44461 November 2010 5.45352
December 2006 5.44458 December 2010 5.45347
January 2007 5.44454 January 2011 5.45343
February 2007 5.44522 February 2011 5.45440
March 2007 5.62510 March 2011 5.63526
April 2007 5.44442 April 2011 5.45328
May 2007 5.62502 May 2011 5.63517
June 2007 5.44434 June 2011 5.45319
July 2007 5.62494 July 2011 5.63507
August 2007 5.62490 August 2011 5.63502
September 2007 5.44422 September 2011 5.45304
October 2007 5.62482 October 2011 5.63842
November 2007 5.44414 November 2011 5.45603
December 2007 5.62474 December 2011 5.68474
January 2008 5.44406 January 2012 5.50128
February 2008 5.44429 February 2012 5.50162
March 2008 5.62463 March 2012 5.68461
April 2008 5.44394 April 2012 5.50115
May 2008 5.62455 May 2012 5.68453
June 2008 5.44386 June 2012 5.50106
July 2008 5.62446 July 2012 5.68444
August 2008 5.62442 August 2012 5.68440
September 2008 5.44374 September 2012 5.50093
October 2008 5.62434 October 2012 5.68431
November 2008 5.44365 November 2012 5.50083
(1) Each interest accrual period relates to the distribution date in the
immediately following calendar month. For example, the December 2004
interest accrual period relates to the January 2005 distribution date.
S-IV-1
SCHEDULE V
BORROWER THIRD-PARTY BENEFICIARIES
(UNDER SECTION 2.03)
[THERE ARE NO THIRD-PARTY BENEFICIARIES.]
S-V-1
