Exhibit 99.1
EXECUTION COPY
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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
PRUDENTIAL ASSET RESOURCES, INC.,
as a Master Servicer and
as Lion Industrial Portfolio Special Servicer
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Master Servicer,
ARCAP SERVICING, INC.,
as General Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Certificate Administrator and as Tax Administrator,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
ABN AMRO BANK N.V.,
as Fiscal Agent
and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,
as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
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POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2004
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$1,108,470,769
Aggregate Initial Certificate Principal Balance
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Commercial Mortgage Pass-Through Certificates
Series 2004-PWR3
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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..........................................................................8
SECTION 1.02. General Interpretive Principles.......................................................84
SECTION 1.03. Certain Calculations in Respect of the Mortgage Pool..................................85
SECTION 1.04. Cross-Collateralized Mortgage Loans...................................................87
SECTION 1.05. Incorporation of Preliminary Statement................................................87
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...................................................88
SECTION 2.02. Acceptance of Mortgage Assets by Trustee..............................................92
SECTION 2.03. Certain Repurchases and Substitutions of Pooled Mortgage Loans by the Pooled
Mortgage Loan Sellers.................................................................95
SECTION 2.04. Representations and Warranties of the Depositor......................................101
SECTION 2.05. Representations and Warranties of PAR as a Master Servicer...........................102
SECTION 2.06. Representations and Warranties of WFB as a Master Servicer...........................104
SECTION 2.07. Representations and Warranties of the General Special Servicer.......................105
SECTION 2.08. Representations and Warranties of the Lion Industrial Portfolio Special Servicer.....107
SECTION 2.09. Representations and Warranties of the Certificate Administrator......................109
SECTION 2.10. Representations and Warranties of the Tax Administrator..............................110
SECTION 2.11. Representations, Warranties and Covenants of the Trustee.............................112
SECTION 2.12. Representations and Warranties of the Fiscal Agent...................................113
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.................................115
SECTION 2.14. Conveyance of the REMIC I Regular Interests; Acceptance of the REMIC I Regular
Interests by Trustee.................................................................118
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................................118
SECTION 2.16. Conveyance of the REMIC II Regular Interests; Acceptance of the REMIC II Regular
Interests by Trustee.................................................................120
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..120
SECTION 2.18. Acceptance of Grantor Trusts; Issuance of the Class V and Class R Certificates.......132
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Section Page
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. General Provisions...................................................................133
SECTION 3.02. Collection of Mortgage Loan Payments.................................................138
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts.............................................................................141
SECTION 3.04. Collection Accounts, Distribution Account, Interest Reserve Account, Excess
Liquidation Proceeds Account and Lion Industrial Portfolio Subordinate Note Custodial
Account..............................................................................145
SECTION 3.05. Permitted Withdrawals From the Collection Accounts, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account and the Lion
Industrial Portfolio Subordinate Note Custodial Account..............................151
SECTION 3.06. Investment of Funds in the Accounts..................................................166
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage........168
SECTION 3.08. Enforcement of Alienation Clauses....................................................173
SECTION 3.09. Realization Upon Defaulted Serviced Mortgage Loans...................................178
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files......................................182
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....................................185
SECTION 3.12. Property Inspections; Collection of Financial Statements.............................194
SECTION 3.13. Annual Statement as to Compliance....................................................196
SECTION 3.14. Reports by Independent Public Accountants............................................196
SECTION 3.15. Access to Information................................................................197
SECTION 3.16. Title to Administered REO Property; REO Account......................................198
SECTION 3.17. Management of Administered REO Property..............................................201
SECTION 3.18. Fair Value Option; Sale of Administered REO Properties; Sale of the Non-Trust-Serviced
Pooled Mortgage Loans................................................................204
SECTION 3.19. Additional Obligations of Master Servicers and Special Servicers.....................211
SECTION 3.20. Modifications, Waivers, Amendments and Consents......................................215
SECTION 3.21. Transfer of Servicing Between Applicable Master Servicer and Applicable Special
Servicer; Record Keeping.............................................................222
SECTION 3.22. Sub-Servicing Agreements.............................................................223
SECTION 3.23. Controlling Class Representative.....................................................227
SECTION 3.24. Certain Rights and Powers of the Controlling Class Representative....................228
SECTION 3.25. Certain Rights and Powers of the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder...........................................................................234
SECTION 3.26. Replacement of Special Servicers.....................................................238
SECTION 3.27. Application of Default Charges.......................................................240
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions........................................................................241
SECTION 4.02. Certificate Administrator Reports; Servicer Reporting................................253
SECTION 4.03. P&I Advances.........................................................................266
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses.....................270
SECTION 4.05. Calculations.........................................................................272
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Section Page
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.....................................................................273
SECTION 5.02. Registration of Transfer and Exchange of Certificates................................273
SECTION 5.03. Book-Entry Certificates..............................................................282
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates....................................283
SECTION 5.05. Persons Deemed Owners................................................................284
SECTION 5.06. Certification by Certificate Owners..................................................284
SECTION 5.07. Appointment of Authenticating Agents.................................................284
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND THE SPECIAL SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers and the Special Servicers...........286
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, a Master Servicer or a Special
Servicer.............................................................................286
SECTION 6.03. Limitation on Liability of the Depositor, the Master Servicers and the Special
Servicers............................................................................286
SECTION 6.04. Resignation of Master Servicers and Special Servicers...............................288
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the Master Servicers and the
Special Servicers....................................................................289
SECTION 6.06. Master Servicers and Special Servicers May Own Certificates..........................290
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default....................................................................291
SECTION 7.02. Trustee to Act; Appointment of Successor.............................................296
SECTION 7.03. Notification to Certificateholders...................................................297
SECTION 7.04. Waiver of Events of Default..........................................................297
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.................................298
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........................................................................299
SECTION 8.02. Certain Matters Affecting the Trustee, the Certificate Administrator and the Tax
Administrator........................................................................301
SECTION 8.03. Trustee, the Fiscal Agent, the Certificate Administrator and the Tax Administrator not
Liable for Validity or Sufficiency of Certificates or Mortgage Loans.................303
SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator and Tax Administrator May Own
Certificates.........................................................................304
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 Fiscal Agent...............................................304
SECTION 8.06. Eligibility Requirements for Trustee, Certificate Administrator and Tax
Administrator........................................................................306
SECTION 8.07. Resignation and Removal of Trustee, Certificate Administrator and Tax Administrator..307
SECTION 8.08. Successor Trustee, Certificate Administrator and Tax Administrator...................308
SECTION 8.09. Merger or Consolidation of Trustee, Certificate Administrator or Tax Administrator...309
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Section Page
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee........................................309
SECTION 8.11. Appointment of Custodians............................................................310
SECTION 8.12. Access to Certain Information........................................................311
SECTION 8.13. Appointment of Fiscal Agent..........................................................313
SECTION 8.14. Advance Security Arrangement.........................................................314
SECTION 8.15. Exchange Act Reporting...............................................................314
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Pooled Mortgage Loans..............318
SECTION 9.02. Additional Termination Requirements..................................................321
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. Tax Administration...................................................................323
SECTION 10.02. Depositor, Master Servicers, Special Servicers and Fiscal Agent to Cooperate with Tax
Administrator........................................................................326
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment............................................................................328
SECTION 11.02. Recordation of Agreement; Counterparts...............................................330
SECTION 11.03. Limitation on Rights of Certificateholders...........................................330
SECTION 11.04. Governing Law........................................................................331
SECTION 11.05. Notices..............................................................................331
SECTION 11.06. Severability of Provisions...........................................................332
SECTION 11.07. Successors and Assigns; Beneficiaries................................................332
SECTION 11.08. Article and Section Headings.........................................................332
SECTION 11.09. Notices to and from the Rating Agencies and the Depositor............................333
SECTION 11.10. Notices to Controlling Class Representative..........................................334
SECTION 11.11. Complete Agreement...................................................................334
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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 ARCap Realized Loss Form
EXHIBIT E-5 ARCap Naming Convention for Electronic File Delivery
EXHIBIT E-6 Controlling Class Certificateholder's Reports Checklist
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]
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EXHIBIT N Form of Final Certification of Trustee
EXHIBIT O Form of Defeasance Certification
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 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 March 1, 2004, among BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC., as Depositor, PRUDENTIAL ASSET RESOURCES, INC., as a Master
Servicer and as Lion Industrial Portfolio Special Servicer, XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as a Master Servicer, ARCAP SERVICING, INC., as General
Special Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Certificate
Administrator and as Tax Administrator, LASALLE BANK NATIONAL ASSOCIATION, as
Trustee, ABN AMRO BANK N.V., as Fiscal Agent, and THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, as Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder.
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
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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) $ 12,558,000
A-1-2 Variable (1) $ 53,751,000
A-1-3 Variable (1) $ 54,975,000
A-1-4 Variable (1) $ 51,275,000
A-1-5 Variable (1) $ 13,941,000
A-2 Variable (1) $ 150,000,000
A-3-1 Variable (1) $ 35,227,000
A-3-2 Variable (1) $ 40,416,000
A-3-3 Variable (1) $ 82,357,000
A-4-1 Variable (1) $ 7,161,000
A-4-2 Variable (1) $ 30,305,000
A-4-3 Variable (1) $ 432,403,000
B-1 Variable (1) $ 229,000
B-2 Variable (1) $ 26,097,000
C-1 Variable (1) $ 2,087,000
C-2 Variable (1) $ 10,384,000
D-1 Variable (1) $ 6,213,000
D-2 Variable (1) $ 10,414,000
E-1 Variable (1) $ 2,004,000
E-2 Variable (1) $ 7,695,000
F Variable (1) $ 15,241,000
G-1 Variable (1) $ 10,241,000
G-2 Variable (1) $ 844,000
H-1 Variable (1) $ 4,094,000
H-2 Variable (1) $ 9,762,000
J Variable (1) $ 2,771,000
K Variable (1) $ 5,542,000
L Variable (1) $ 6,928,000
M Variable (1) $ 5,543,000
N Variable (1) $ 2,771,000
P Variable (1) $ 2,771,000
Q Variable (1) $ 12,470,769
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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
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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
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Class A-1 3.236% per annum $ 186,500,000
Class A-2 3.869% per annum $ 150,000,000
Class A-3 4.487% per annum $ 158,000,000
Class A-4 4.715% per annum $ 469,869,000
Class B Variable (1) $ 26,326,000
Class C Variable (1) $ 12,471,000
Class D Variable (1) $ 16,627,000
Class E Variable (1) $ 9,699,000
Class F Variable (1) $ 15,241,000
Class G Variable (1) $ 11,085,000
Class H Variable (2) $ 13,856,000
Class J Variable (1) $ 2,771,000
Class K Variable (1) $ 5,542,000
Class L Variable (1) $ 6,928,000
Class M Variable (1) $ 5,543,000
Class N Variable (1) $ 2,771,000
Class P Variable (1) $ 2,771,000
Class Q Variable (1) $ 12,470,769
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 F, Class G, 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 4.810%,
4.850%, 4.889%, 4.998%, 5.199%, 5.305%, 5.025%, 5.025%,
5.025%, 5.025%, 5.025%, 5.025% and 5.025%, 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 H, Class X-1
and Class X-2 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
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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 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
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The REMIC III Components of the Class X-1 Certificates are hereby
irrevocably designated X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0,
X0-X-0, X0-X-0, X1-C-2, X1-D-1, X1-D-2, X1-E-1, X1-E-2, X1-F, X1-G-1, X1-G-2,
X0-X-0, X0-X-0, X0-X, X0-X, X0-X, X0-X, X0-X, X1-P and X1-Q.
The REMIC III Components of the Class X-2 Certificates are hereby
irrevocably designated X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0,
X0-X-0, X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2,-E-2, X2-F, X0-X-0, X0-X-0, X0-X-0,
X0-X-0, X0-X, X0-X and X2-L.
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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REMIC III REMIC III
REMIC II Class of Component of Class X-1 Component of Class
Regular Interest Certificates Certificates X-2 Certificates
---------------- ------------ ------------ ----------------
X-0-0 X-0 X0-X-0-0 Not Applicable
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0 X-0 X1-A-2 X2-A-2
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X1-A-3-2 X2-A-3-2
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X1-A-4-1 X2-A-4-1
A-4-2 X-0 X0-X-0-0 X0-X-0-0
X-0-0 X-0 X0-X-0-0 X0-X-0-0
X-0 B X1-B-1 X2-B-1
X-0 X X0-X-0 X0-X-0
X-0 X X0-X-0 X0-X-0
C-2 C X1-C-2 X2-C-2
X-0 X X0-X-0 X0-X-0
X-0 D X1-D-2 X2-D-2
X-0 X X0-X-0 X0-X-0
X-0 X X0-X-0 X0-X-0
X X X0-X X0-X
X-0 X X0-X-0 X0-X-0
X-0 G X1-G-2 X2-G-2
H-1 H X1-H-1 X2-H-1
H-2 H X1-H-2 X2-H-2
J J X1-J X2-J
K K X0-X X0-X
X X X0-X X0-X
X X X0-X Not Applicable
N N X1-N Not Applicable
P P X1-P Not Applicable
Q Q X1-Q Not Applicable
For federal income tax purposes, each Class of the Regular Interest
Certificates (exclusive of the Class X-1 and Class X-2 Certificates), each of
the REMIC III Components of the Class X-1 Certificates and each of the REMIC
III Components of the Class X-2 Certificates will be designated as a separate
"regular interest" in REMIC III. The Latest Possible Maturity Date for each
Class of Regular Interest Certificates (exclusive of the Class X-1 and Class
X-2 Certificates), for each of the REMIC III Components of the Class X-1
Certificates and for each of the REMIC III Components of the Class X-2
Certificates is the Rated Final Distribution Date.
The Initial Pool Balance will be $1,108,470,769, 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
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Class Principal Balance of the respective Classes of Regular Interest
Certificates (other than the Class X-1 and Class K-2 Certificates) will,
in each case, be $1,108,470,769.
As described below, there exist one or more 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 or subordinate in right of payment
to the related Pooled Mortgage Loan.
The Lion Industrial Portfolio Pooled Mortgage Loans are part of a
split loan structure comprising the Lion Industrial Portfolio Pooled Mortgage
Loans and the Lion Industrial Portfolio Non-Pooled Subordinate Loans. The
relative rights of the holder of the Lion Industrial Portfolio Pooled Mortgage
Loans and the Lion Industrial Portfolio Non-Pooled Subordinate Loans are set
forth in the Lion Industrial Portfolio Intercreditor Agreement, which provides
that the Lion Industrial Portfolio 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
Lion Industrial Portfolio Special Servicer.
The Two Commerce Square Pooled Mortgage Loan is part of a split loan
structure comprising the Two Commerce Square Pooled Mortgage Loan and the Two
Commerce Square Non-Pooled Mortgage Loan. The relative rights of the holder of
the Two Commerce Square Pooled Mortgage Loan and the holder of the Two
Commerce Square Non-Pooled Pari Passu Companion Loan are set forth in the
Series 2003-IQ5 PSA and/or the Two Commerce Square Intercreditor Agreement,
which provide that the entire Two Commerce Square Loan Pair is to be serviced
and administered in accordance with the Series 2003-IQ5 PSA.
The Trinity Centre Pooled Mortgage Loan is part of a split loan
structure comprising the Trinity Centre Pooled Mortgage Loan and the Trinity
Centre Non-Pooled Pari Passu Companion Loan. The relative rights of the holder
of the Trinity Centre Pooled Mortgage Loan and the holder of the Trinity
Centre Non-Pooled Pari Passu Companion Loan are set forth in the Series
2004-TOP13 PSA and/or the Trinity Centre Intercreditor Agreement, which
provide that the entire Trinity Centre Loan Pair is to be serviced and
administered in accordance with the Series 2004-TOP13 PSA.
The Carmel Mountain Plaza Pooled Mortgage Loan is part of a split
loan structure comprising the Carmel Mountain Plaza Pooled Mortgage Loan and
the Carmel Mountain Plaza Non-Pooled Pari Passu Companion Loan. The relative
rights of the holder of the Carmel Mountain Plaza Pooled Mortgage Loan and the
holder of the Carmel Mountain Plaza Non-Pooled Pari Passu Companion Loan are
set forth in the Series 2003-PWR2 PSA and/or the Carmel Mountain Plaza
Intercreditor Agreement, which provide that the entire Carmel Mountain Plaza
Loan Pair 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.
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In consideration of the mutual agreements herein contained, the
Depositor, each Master Servicer, each Special Servicer, the Certificate
Administrator, the Tax Administrator, the Trustee, the Fiscal Agent and the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder 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.
"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.
"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) the Pass-Through 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.
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"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 Regular
Certificateholders 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).
"Adjusted REMIC II Remittance Rate": As defined in Section 2.17(f).
"Administered REO Property": Any REO Property other than any REO
Property related to a 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 a Non-Trust-Serviced Pooled
Mortgage Loan, a 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% per annum in the case of each of the Two Commerce
Square Pooled Mortgage Loan, the Trinity Centre Pooled Mortgage Loan and the
Carmel Mountain Plaza Pooled Mortgage Loan).
"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).
"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
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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 Servicers 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
applicable Special Servicer's option, either a limited appraisal and a summary
report or an internal valuation prepared by such 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 applicable 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).
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"Appraisal Reduction Amount": With respect to any Serviced Pooled
Mortgage Loan that is a Required Appraisal Loan, an amount (calculated
initially as of the Determination Date immediately following the later of the
date on which the subject Pooled Mortgage Loan became a Required Appraisal Loan
and the date on which the applicable Required 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 applicable 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 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 Required Appraisal or any
letter update of such Required 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 applicable 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 Required 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 Required Appraisal or update
thereof a material change in the circumstances surrounding the related
Mortgaged Property or REO Property, as the case may be,
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that would, in the applicable 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 Required 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 Required 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
Required Appraisal or update thereof by the applicable 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.
For purposes of the definition of "Lion Industrial Portfolio Change
of Control Event", any Appraisal Reduction Amounts will be calculated with
respect to the entirety of the Lion Industrial Portfolio Loan Group as if it
were a single "Serviced Pooled Mortgage Loan" and allocated first to the Lion
Industrial Portfolio Non-Pooled Subordinate Loans up to the full principal
balance thereof.
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 each
Non-Trust-Serviced Pooled Mortgage Loan, the Appraisal Reduction Amount shall
be the "appraisal reduction amount" calculated by the related Non-Trust Master
Servicer pursuant to the related Non-Trust Servicing Agreement and the parties
hereto shall be entitled to rely on such calculations as reported to them by
the applicable 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.
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"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.
"ARCap Realized Loss Report": The report in the form of and
containing the information provided for on Exhibit E-4 hereto. The ARCap
Realized Loss 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 SI": ARCap Servicing, Inc. or its successor in interest.
"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 applicable Special Servicer), for that scheduled
maturity date and for each subsequent Due Date as of which such 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 a Lion
Industrial Portfolio Pooled
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Mortgage Loan or a 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 the Two Commerce
Square Pooled Mortgage Loan, 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
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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.
"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 February 18, 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 March 4, 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 Servicers 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.
"Carmel Mountain Plaza Intercreditor Agreement": That certain
Intercreditor Agreement, dated as of September 1, 2003, by and among BSCMI, as
lead lender, and BSCMI, as co-lender.
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"Carmel Mountain Plaza Loan Pair": The Carmel Mountain Plaza Pooled
Mortgage Loan and the Carmel Mountain Plaza Non-Pooled Pari Passu Companion
Loan, together.
"Carmel Mountain Plaza Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Carmel Mountain Plaza".
"Carmel Mountain Plaza Non-Pooled Pari Passu Companion Loan": The
other mortgage loan, in the original principal amount of $35,167,333, that is
secured by the same Mortgage on the Carmel Mountain Plaza Mortgaged Property as
the Carmel Mountain Plaza Pooled Mortgage Loan. The Carmel Mountain Plaza
Non-Pooled Pari Passu Companion Loan is not a "Mortgage Loan" or part of the
Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Carmel Mountain Plaza Pooled Mortgage Loan": The Pooled Mortgage
Loan secured by the Carmel Mountain Plaza Mortgaged Property.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's 2004-PWR3 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 Person shall be
a "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, a 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
any of Sections 3.23, 3.24 and 3.25), 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
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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 a 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 Certificates": The Class A-1, Class A-2, Class A-3 and Class
A-4 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.
"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
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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 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-1, Class A-2, Class A-3 and Class A-4 Certificates
remain outstanding and (ii) the aggregate of the Class Principal Balances of
the Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P and Class Q Certificates have 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 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 Original 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, for purposes of principal distributions on
such Distribution Date, the Class Principal Balances of the respective Classes
of Principal Balance Certificates shall be deemed to have been 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 between 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
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Certificates, pro rata according to the amounts of Realized Losses previously
allocated to the respective Classes of Class A 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.
"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-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.
"Clearstream": Clearstream Banking, societe anonyme or any successor.
"Closing Date": March 18, 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,
Trustee, each 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
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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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally and is reasonably acceptable
to each Master Servicer and each 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 applicable
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 applicable
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 applicable 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 applicable 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 applicable
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 applicable 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 each 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.
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"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 each 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 each 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.
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 each 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 hereafter 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
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time to time be recommended by the CMSA for commercial mortgage-backed
securities transactions generally and is reasonably acceptable to each Master
Servicer, each 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, each 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 each 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 each 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.
"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
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recommended by the CMSA for commercial mortgage-backed securities transactions
generally and is reasonably acceptable to each 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 each 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 Inc.,
Commercial Mortgage Pass-Through Certificates, 2004-PWR3, 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.
"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.
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"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 a Special Servicer
(including with respect to any Non-Trust-Serviced Pooled Mortgage Loans or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the applicable Non-Trust Master Servicer or the applicable
Non-Trust Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor Agreement and/or the related 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 Original 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 Original Class Principal
Balance, then the Controlling Class shall be the then outstanding Class of
Principal Balance Certificates bearing the latest alphabetic Class designation
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 and
Class A-4 Certificates shall be deemed a single Class of Certificates with a
"Class A" designation.
"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 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: Bear Xxxxxxx
Commercial Mortgage Securities Inc., 2004-PWR3, and for all other purposes, at
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, Bear Xxxxxxx Commercial Mortgage Securities Inc., 2004-PWR3;
and (ii) in the case of the Trustee, at 000 Xxxxx XxXxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities Trust Services
Group-Bear Xxxxxxx Commercial Mortgage Securities Inc., 2004-PWR3.
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"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 a Non-Trust-Serviced Pooled Mortgage Loan
constitute a Corrected Pooled Mortgage Loan under this Agreement.
"Corresponding REMIC II Regular Interest": (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 titled "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 titled "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 which
such REMIC III Component is set forth in the Preliminary Statement in the
table titled "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.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan, that is, by
its terms, cross-defaulted and cross-collateralized with any other 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 March 2004 (or, in the case
of any Mortgage Loan that has its first Due Date in April 2004, the date that
would have been its Due Date in March 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
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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 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.
"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 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
applicable Special Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an Administered REO Property solely because the Trustee
(or the applicable 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.
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"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 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
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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 Inc., Commercial Mortgage Pass-Through Certificates,
2004-PWR3, 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 April 2004.
"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, (A) the long-term
deposit or long-term unsecured debt obligations of which are rated no less
than "AA-" (or "A-" 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 and "AA-" by Fitch (if the deposits are to be held in
the account for more than thirty (30) days), or (B) the short-term deposit or
short-term unsecured debt obligations of which are rated no less than "A-1" by
S&P and "F-1" by Fitch (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, or (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), or (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 "A-1" by S&P and "F-1" by Fitch (if the
deposits are to be held in the account for 30 days or less) or (B) long-term
unsecured debt obligations are rated at least "AA-" (or "A-" 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 and "A+" by Fitch (if the
deposits are to be held in the account for more than 30 days), or (iv) an
account maintained with any other insured depository institution that is
acceptable to each Rating Agency (as evidenced by 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).
"Emergency Advance": Any Servicing Advance, whether or not it is a
Servicing Advance that, pursuant hereto, the applicable Special Servicer is
required to make or to request a Master Servicer to make, that must be made
within five Business Days of such Special Servicer's 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.
"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 a
Special Servicer for the account of the Borrower under any Serviced Mortgage
Loan for application
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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.
"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 Administered REO
Property relating to the Lion Industrial Portfolio Pooled Mortgage Loans, any
portion of such Net Liquidation Proceeds payable to the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder.
"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 Inc., Commercial Mortgage Pass-Through
Certificates, 2004-PWR3, 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 (i) in the case of a Pooled Mortgage Loan, the annual rate
specified as the "Excess Fee Rate" on the Pooled Mortgage Loan Schedule and
(ii) in the case of the Lion Industrial Portfolio Non-Pooled Subordinate
Loans, zero (0) basis points; 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
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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.
"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)
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, (iii) Xxxxxxx, Sachs &
Co., (iv) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with Bear,
Xxxxxxx & Co. Inc, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or
Xxxxxxx, Sachs & Co. and (v) any member of any underwriting syndicate or
selling group 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 applicable 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
such Special Servicer reasonably deems appropriate, is the fair value of such
Mortgage Loan.
Xxxxxx Xxx": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any successor.
"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 applicable
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 any 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 applicable 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 a
mezzanine lender on behalf 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 General Special Servicer pursuant to Section 9.01, (d) the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder pursuant to the
Lion Industrial Portfolio Intercreditor
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Agreement or (e) any party with a purchase option in respect of a
Non-Trust-Serviced Pooled Mortgage Loan pursuant to the related Mortgage Loan
Group Intercreditor Agreement and/or the related Non-Trust Servicing
Agreement; and provided, further, that, for purposes of making any such
determination with respect to any 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 related 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.
"Fitch": Fitch, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "Fitch" 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 Fitch, 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 Fitch, be deemed to refer to such applicable rating
category of Fitch, without regard to any plus or minus or other comparable
rating qualification.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation or any
successor.
"GAAP": Generally accepted accounting principles in the United
States.
"General Special Servicer": ARCap SI, in its capacity as special
servicer with respect to the Mortgage Pool (exclusive of the Lion Industrial
Portfolio Loan Group) and any related REO Properties hereunder, or any
successor special servicer with respect to the Mortgage Pool (exclusive of the
Lion Industrial Portfolio Loan Group) and any related REO Properties appointed
as provided herein.
"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).
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"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, each 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 related 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 related
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, either
Special Servicer, the Certificate Administrator, the Tax Administrator, the
Trustee, the Fiscal Agent, any Non-Trust Master Servicer (insofar as the
relevant matter involves the related Non-Trust-Serviced Pooled Mortgage Loan),
any Non-Trust Special Servicer (insofar as the relevant matter involves the
related 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, either
Special Servicer, the Certificate Administrator, the Tax Administrator, the
Trustee, the Fiscal Agent, any Non-Trust Master Servicer (insofar as the
relevant matter involves the related Non-Trust-Serviced Pooled Mortgage Loan),
any Non-Trust Special Servicer (insofar as the relevant matter involves the
related 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,
either Special Servicer, the Trustee, the Fiscal Agent, any Non-Trust Master
Servicer, any 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, such 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, either 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, a Special Servicer
(including with respect to any Non-Trust-Serviced Pooled Mortgage Loans or any
related REO Property, any such proceeds remitted to the applicable Master
Servicer by the applicable Non-Trust Master Servicer or the applicable
Non-Trust Special Servicer pursuant to the related Mortgage Loan Group
Intercreditor Agreement and/or the related 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
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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 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 Inc.,
Commercial Mortgage Pass-Through Certificates, 2004-PWR3, 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 the Two Commerce Square Pooled Mortgage Loan, 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 the Two Commerce
Square Pooled Mortgage Loan, 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 applicable Special Servicer, any
applicable Non-Trust Master Servicer or any applicable 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 Lion
Industrial Portfolio Subordinate Note Custodial Account, the Servicing
Accounts, the Reserve Accounts,
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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.
"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 late 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 the Two Commerce Square Pooled Mortgage Loan, 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, which (as applied under
Section 1.03) represent late 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 the Two Commerce Square Pooled Mortgage
Loan, 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.
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"Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx": The Borrower under the Lion
Industrial Portfolio Loan Group.
"Lion Industrial Portfolio Change of Control Event": The event that
occurs if, as of any date of determination, (i) the then outstanding principal
balance of the Lion Industrial Portfolio Non-Pooled Subordinate Loans minus
(ii) any Appraisal Reduction Amount allocable to the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, together with any related Realized Losses
allocable to the Lion Industrial Portfolio Non-Pooled Subordinate Loans and
Additional Trust Fund Expenses allocable to the Lion Industrial Portfolio
Non-Pooled Subordinate Loans is less than 25% of the initial principal balance
of the Lion Industrial Portfolio Non-Pooled Subordinate Loans, less any
payments of principal (whether as scheduled amortization, prepayments or
otherwise).
"Lion Industrial Portfolio Controlling Party": The Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder at any time when a Lion Industrial
Portfolio Change of Control Event does not exist or the Controlling Class
Representative at any time when a Lion Industrial Portfolio Change of Control
Event exists.
"Lion Industrial Portfolio Intercreditor Agreement": That certain
Co-Lender Agreement, dated as of March 18, 2004, by and between PMCF as
initial note A holder and The Prudential Insurance Company of America, as
initial note B holder.
"Lion Industrial Portfolio Loan Group": Collectively, the Lion
Industrial Portfolio Pooled Mortgage Loans and the Lion Industrial Portfolio
Non-Pooled Subordinate Loans (including any successor REO Mortgage Loans with
respect to such loans).
"Lion Industrial Portfolio Mortgaged Properties": The Mortgaged
Properties collectively identified on the Pooled Mortgage Loan Schedule as
"Lion Industrial Portfolio".
"Lion Industrial Portfolio Non-Pooled Subordinate Five-Year Mortgage
Loan": The loan identified as "Tranche A" in the Mortgage Note evidencing the
Lion Industrial Portfolio Non-Pooled Subordinate Loans, which loan has an
original principal balance of $68,393,600, a Mortgage Rate of 4.60% per annum
and a Maturity Date of January 1, 2009.
"Lion Industrial Portfolio Non-Pooled Subordinate Loans":
Collectively, the mortgage loans in the aggregate original principal amount of
$92,800,000 that are secured by the same Mortgages encumbering the Lion
Industrial Portfolio Mortgaged Properties as the Lion Industrial Portfolio
Pooled Mortgage Loans and are subordinate in right of payment to the Lion
Industrial Portfolio Pooled Mortgage Loans and are each held as of the Closing
Date by The Prudential Insurance Company of America. The Lion Industrial
Portfolio Non-Pooled Subordinate Loans consist of the Lion Industrial Portfolio
Non-Pooled Subordinate Five-Year Mortgage Loan and the Lion Industrial
Portfolio Non-Pooled Subordinate Seven-Year Mortgage Loan, which are not part
of the Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Lion Industrial Portfolio Non-Pooled Subordinate Noteholder": The
holder or holders of the related Mortgage Note evidencing the Lion Industrial
Portfolio Non-Pooled Subordinate Loans.
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"Lion Industrial Portfolio Non-Pooled Subordinate Seven-Year Mortgage
Loan": The loan identified as "Tranche B" in the Mortgage Note evidencing the
Lion Industrial Portfolio Non-Pooled Subordinate Loans, which loan has an
original principal balance of $24,406,400, a Mortgage Rate of 5.34% per annum
and a Maturity Date of January 1, 2011.
"Lion Industrial Portfolio Pooled Five-Year Mortgage Loan" The loan
identified as "Tranche A" in the Mortgage Note evidencing the Lion Industrial
Portfolio Pooled Mortgage Loans, which loan has an original principal balance
of $68,393,600, a Mortgage Rate of 4.26% and a Maturity Date of January 1,
2009.
"Lion Industrial Portfolio Pooled Mortgage Loans": One or both of the
Pooled Mortgage Loans in the aggregate original principal amount of $92,800,000
that are secured by the Mortgages encumbering the Lion Industrial Portfolio
Mortgaged Properties. The Lion Industrial Portfolio Pooled Mortgage Loans are
comprised of the Lion Industrial Portfolio Pooled Five-Year Mortgage Loan and
the Lion Industrial Portfolio Pooled Seven-Year Mortgage Loan.
"Lion Industrial Portfolio Pooled Seven-Year Mortgage Loan" The loan
identified as "Tranche B" in the Mortgage Note evidencing the Lion Industrial
Portfolio Pooled Mortgage Loans, which loan has an original principal balance
of $24,406,400, a Mortgage Rate of 4.74% and a Maturity Date of January 1,
2011.
"Lion Industrial Portfolio Special Servicer": PAR, in its capacity as
special servicer with respect to the Lion Industrial Portfolio Loan Group, or
any successor special servicer of the Lion Industrial Portfolio Loan Group
appointed as provided herein.
"Lion Industrial Portfolio Subordinate Note Custodial Account": As
defined in Section 3.04(e).
"Lion Industrial Portfolio Sub-Servicer": Any Sub-Servicer of the Lion
Industrial Portfolio Loan Group appointed by the applicable Master Servicer in
accordance with the terms hereof.
"Lion Industrial Portfolio Sub-Servicing Agreement": The Sub-Servicing
Agreement between the Lion Industrial Portfolio Sub-Servicer, if any, and the
applicable Master Servicer.
"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 a 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 a 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) in the case of a Lion Industrial Portfolio Pooled Mortgage
Loan, such Mortgage Loan is acquired by the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder pursuant to the Lion Industrial Portfolio
Intercreditor Agreement, (viii) such
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Mortgage Loan is paid off by the holder of a related mezzanine loan on behalf
of the related Borrower in connection with a Mortgage Loan default, if so
permitted and set forth in the related intercreditor agreement, or (ix) in the
case of a Non-Trust-Serviced Pooled Mortgage Loan, such Mortgage Loan is
purchased by a holder of a purchase option with respect thereto pursuant to the
related 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 General
Special Servicer or any Controlling Class Certificateholder(s) pursuant to
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
applicable 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 a 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; (v) the purchase of a Pooled Mortgage Loan or
REO Property by a Master Servicer, a 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 a Lion Industrial Portfolio Pooled Mortgage Loan by the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder pursuant to the Lion Industrial
Portfolio Intercreditor Agreement; or (viii) the purchase of a
Non-Trust-Serviced Pooled Mortgage Loan by any holder of a purchase option with
respect thereto pursuant to the related Non-Trust Servicing Agreement and/or
the related Mortgage Loan Group Intercreditor Agreement.
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"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 or are the Lion Industrial Portfolio Non-Pooled
Subordinate Loans, PAR, or any successor thereto appointed as provided herein,
or (b) if such Mortgage Loan is a WFB Pooled Mortgage Loan or a BSCMI 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 the Two Commerce
Square Pooled Mortgage Loan 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) 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 (or, in the case of the Two Commerce
Square Pooled Mortgage Loan due on a Due Date occurring in a month that is
subsequent to the month in which such Collection Period ends), (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.
"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).
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"Master Servicing Fee Rate": With respect to (i) each Pooled Mortgage
Loan (and any successor REO Pooled Mortgage Loan with respect thereto),
including each Lion Industrial Portfolio Pooled Mortgage Loan, 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 (i) the Servicer Report
Administrator Fee Rate; (ii) the Trustee Fee Rate and (iii) if (and only if)
such Pooled Mortgage Loan constitutes a Non-Trust-Serviced Pooled Mortgage
Loan, a 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% per annum in the case of each of the Two Commerce
Square Pooled Mortgage Loan, the Trinity Centre Pooled Mortgage Loan and the
Carmel Mountain Plaza Pooled Mortgage Loan); and (ii) the Lion Industrial
Portfolio Non-Pooled Subordinate Loans, such reasonable rate as is mutually
acceptable to the applicable Master Servicer and the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder.
"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.
"Modified Mortgage Loan": Any Pooled Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the
applicable 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 applicable
Special Servicer (at the expense of the related Borrower and upon which
such Special Servicer may conclusively rely); or
(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.
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"Monthly Additional Report on Recoveries and Reimbursements": With
respect to each Collection Period, a report, in a format reasonably acceptable
to each Master Servicer, the Servicer Report Administrator, the Trustee and the
Certificate Administrator (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 such parties) 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, a 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, a 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, a 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
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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, a 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
(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 for which all of the entries in the report would be "zero"
or "not applicable."
"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 applicable
Special Servicer pursuant to Section 3.20 (or, in the case of the
Non-Trust-Serviced Pooled Mortgage Loans, by the applicable Non-Trust Master
Servicer or the applicable 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.
"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.
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"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 Inc., Commercial Mortgage
Pass-Through Certificates, 2004-PWR3, 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, 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 a
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 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 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
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, 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 a 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 Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR3 (or, in the case of the Lion
Industrial Portfolio Pooled Mortgage Loans, in favor of "LaSalle Bank
National Association, in its capacity as Trustee for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, and in its capacity
-45-
as lead lender on behalf of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder (or, in each case, a copy thereof, certified to be
the copy of such assignment submitted for recording);
(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, if any;
(vi) except in the case of a 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 in favor of "LaSalle Bank National
Association, in its capacity as Trustee for the registered holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR3" (or, in the case of the Lion
Industrial Portfolio Pooled Mortgage Loans, in favor of "LaSalle Bank
National Association, in its capacity as Trustee for the registered
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, and in its capacity
as lead lender on behalf of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder"), which assignment may (in any case) be included
as part of the corresponding assignment of Mortgage referred to in clause
(iv) above;
(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 Loans, 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 Inc., Commercial
Mortgage Pass-Through Certificates, 2004-PWR3" (or, in the case of the
Lion Industrial Portfolio Pooled Mortgage Loans, in favor of "LaSalle
Bank National Association, in its capacity as Trustee for the registered
-46-
holders of Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, and in its capacity
as lead lender on behalf of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder");
(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 Loans, 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;
(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 a Lion Industrial Portfolio Pooled Mortgage Loan or a
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; and
(xx) a checklist (a "Mortgage File Checklist") of the applicable
documents described above and delivered in connection with the
origination of such
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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) and (viii) 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 the Lion Industrial Portfolio Pooled Mortgage Loans
shall include a photocopy of the executed Mortgage Note for the Lion Industrial
Portfolio Non-Pooled Subordinate Loans; (C) all the documents in the Mortgage
File for the Lion Industrial Portfolio Pooled Mortgage Loans (other than the
Mortgage Note for such Pooled Mortgage Loans and any allonges thereto) shall be
deemed to be contained in the "Mortgage File" for the Lion Industrial Portfolio
Non-Pooled Subordinate Loans (without any additional copies) and references
herein to the "Mortgage File" for the Lion Industrial Non-Pooled Subordinate
Loan shall be construed in accordance with this statement; and (D) the
"Mortgage File" for each Non-Trust-Serviced Pooled Mortgage Loan shall also
include a copy of the related 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 related
Non-Trust Servicing Agreement).
"Mortgage File Checklist": As defined in clause (xxi) of the
definition of "Mortgage File".
"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 Lion Industrial Portfolio Loan
Group, the Two Commerce Square Loan Pair, the Trinity Centre Loan Pair and the
Carmel Mountain Plaza Loan Pair.
"Mortgage Loan Group Intercreditor Agreement": Each of the Lion
Industrial Portfolio Intercreditor Agreement, the Two Commerce Square
Intercreditor Agreement, the Trinity Centre Intercreditor Agreement and the
Carmel Mountain Plaza Intercreditor Agreement.
"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.
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"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 Loans, by the
applicable Non-Trust Master Servicer or the applicable 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.
"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.
"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 3.27(a), which are payable to the applicable Master Servicer
as Additional Master Servicing Compensation or the applicable 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
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portion of such interest or other income payable to a Borrower in accordance
with the related 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, a
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, such
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 also 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 Lion Industrial Portfolio Non-Pooled Subordinate 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" means any of the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, the Two Commerce Square Non-Pooled Pari Passu
Companion Loan, the Trinity Centre Non-Pooled Pari Passu Companion Loan and the
Carmel Mountain Plaza Non-Pooled Pari Passu Companion Loan.
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"Non-Pooled Noteholder" means any of the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder, the Two Commerce Square Non-Pooled Pari
Passu Companion Noteholder, the Trinity Centre Non-Pooled Pari Passu Companion
Noteholder and the Carmel Mountain Plaza Non-Pooled Pari Passu Companion
Noteholder.
"Non-Pooled Pari Passu Companion Loan" means any of the Two Commerce
Square Non-Pooled Pari Passu Companion Loan, the Trinity Centre Non-Pooled Pari
Passu Companion Loan and the Carmel Mountain Plaza Non-Pooled Pari Passu
Companion Loan.
"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 applicable 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 Non-Trust-Serviced Pooled
Mortgage 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 Non-Trust Master Servicer with respect to the related Non-Pooled Pari
Passu Companion Loan under the related Non-Trust Servicing Agreement has
determined, pursuant to such Non-Trust Servicing 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
Non-Trust-Serviced 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 Non-Trust-Serviced 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 Non-Trust Master Servicer and they both
agree that circumstances with respect to such Mortgage Loan have changed such
that a proposed future P&I Advance would not be a Nonrecoverable Advance.
Notwithstanding the 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.
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"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.
"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 X-2, 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 each Non-Trust-Serviced
Pooled Mortgage Loan, the master servicer under the related Non-Trust Servicing
Agreement.
"Non-Trust-Serviced Pooled Mortgage Loan": Any of the Two Commerce
Square Pooled Mortgage Loan, the Trinity Centre Pooled Mortgage Loan and the
Carmel Mountain Plaza Pooled Mortgage Loan.
"Non-Trust Servicing Agreement": With respect to each
Non-Trust-Serviced Pooled Mortgage Loan, the separate agreement pursuant to
which such Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled
Pari Passu Companion Loan are (or, if applicable, any related REO Property is)
serviced and administered, which agreement is, as of the Closing Date, (i) in
the case of the Two Commerce Square Pooled Mortgage Loan, the Series 0000-XX0
XXX, (xx) in the case of the Trinity Centre Pooled Mortgage Loan, the Series
2004-TOP13 PSA and (iii) in the case of the Carmel Mountain Plaza Pooled
Mortgage Loan, the Series 2003-PWR2 PSA.
"Non-Trust Special Servicer": With respect to each Non-Trust-Serviced
Pooled Mortgage Loan, the special servicer under the related 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 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
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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 either 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 Pooled Mortgage Loans": The mortgage loans initially
identified on the schedules attached hereto as Schedule I-A, Schedule I-B and
Schedule I-C.
"Original PMCF Pooled Mortgage Loans": The mortgage loans initially
identified on the schedule attached hereto as Schedule I-A.
"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, 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).
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"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 stated 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;
(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 each of S&P and Fitch (or, in the case of any
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 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 each of S&P and Fitch (or, in the case of any
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
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Certificates, 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 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 each of S&P and Fitch (or, in the case of any Rating
Agency, has 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 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 each of S&P and Fitch (or, in
the case of any 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); or
(vi) any other obligation or security that is acceptable to each
Rating Agency and will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed
in writing to the Trustee and Certificate Administrator by
each relevant Rating Agency;
provided that (A) no investment described hereunder shall 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) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity, (C) no investment
described hereunder may 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 and (D) no investment described
hereunder may 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
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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.
"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 March 4, 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 and the PMCF Pooled Mortgage Loan Purchase Agreement.
"Pooled Mortgage Loan Schedule": Collectively, the three schedules of
Pooled Mortgage Loans attached hereto as Schedule I-A, Schedule I-B and
Schedule I-C, 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
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Date and the identification number assigned to such 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 maturity, on the first Due Date after
amortization begins);
(v) the Mortgage Rate as of the Closing Date and the Interest
Accrual Basis;
(vi) the maturity date and the original and remaining term to
stated maturity (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 Mortgage
Loans with which such 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 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;
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(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, WFB, BSCMI and PMCF.
"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 Mortgage Loan, be
deferred until the principal balance of such 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 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 any 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 (or, in the case of the Two Commerce Square
Pooled Mortgage Loan, after the Due Date occurring in the calendar month
preceding the calendar month in which any Collection Period ends), any payment
of interest (net of related Master Servicing Fees (and, in the case of the
Non-Trust-Serviced Pooled Mortgage Loans, the master or similar servicing and
administrative fees payable therefrom under the related Non-Trust Servicing
Agreement) 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 any 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 (or, in the case of the Two Commerce Square
Pooled Mortgage Loan, prior to the Due Date occurring in the calendar month
preceding
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the calendar month in which any Collection Period ends, the amount of interest,
to the 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 Loans, the rate per
annum at which the master or similar servicing and administrative fees payable
therefrom under the related 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 Servicing Office": The office of a Master Servicer or 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 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
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(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,
(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 the Two Commerce Square Pooled Mortgage
Loan, 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, represent 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
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(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 and/or a Final Recovery Determination
was made with respect to any Pooled Mortgage Loan or REO Property 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 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 Servicers, 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
Servicers, 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).
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 March 4, 2004, relating to certain classes of the Non-Registered
Certificates delivered by
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the Depositor to Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx, Sachs & Co. 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
March 4, 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
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 a Non-Trust-Serviced Pooled Mortgage
Loan, net of the rate at which master or similar servicing and administrative
fees payable under the related Non-Trust Servicing Agreement accrue) to, but
not including, the Due Date occurring in the Collection Period (or, in the
case of the Two Commerce Square Pooled Mortgage Loan, 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 or a purchase of the Lion Industrial Portfolio Pooled
Mortgage Loans by the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder pursuant to the related Mortgage Loan Group Intercreditor
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)(i) of this definition, any
costs and expenses incurred by a Master Servicer, a Special Servicer, the
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Trustee or an agent of any of them (on behalf of the Trust) in enforcing the
obligation, if any, of such Person 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 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,
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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 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 February 2041.
"Rating Agency": Each of S&P and Fitch.
"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) 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
that caused any Class of Certificateholders to receive less than the full
amount of
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Distributable Certificate Interest on the Distribution Date occurring in
the Collection Period in which the Final Recovery Determination was made
(including any Distributable Certificate Interest that remained unpaid
from prior Distribution Dates), 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, 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 applicable Special Servicer
pursuant to Section 3.20 (or, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, by the applicable Non-Trust Master Servicer or the
applicable Non-Trust Special Servicer pursuant to the related 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 applicable Special Servicer pursuant to Section 3.20 (or, in the case
of a Non-Trust-Serviced Pooled Mortgage Loan, by the applicable Non-Trust
Master Servicer or the applicable Non-Trust Special Servicer pursuant to
the related 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.
"Received by the Trust": In the case of: (a) any 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 Pooled Mortgage Loan or related REO
Property, received by a Master Servicer (or any Sub-Servicer thereof), a
Special Servicer (or any Sub-Servicer thereof) or the Trustee, as the case may
be, on behalf of the
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Trust and/or, in connection with the Lion Industrial Portfolio Loan Group, the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder.
"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 B, Class C, Class D and Class E
Certificates constitute Registered Certificates.
"Regular Interest Certificate": Any of the Interest Only Certificates
and the Principal Balance Certificates.
"Regulation S": Regulation S under the Securities Act.
"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.
"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.
"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 Servicers 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).
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"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.
"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.
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"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 a Special Servicer, pursuant to Section 3.16(b), on behalf of the
Trustee in trust for the Certificateholders (and, if the subject REO Property
relates to the Lion Industrial Portfolio Loan Group, for the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder), which shall be entitled (i) in
the case of the General Special Servicer, "ARCap Servicing, Inc. [or the name
of any successor Special Servicer], as General 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 Inc., Commercial Mortgage Pass-Through Certificates, Series
2004-PWR3, REO Account"; and (ii) in the case of the Lion Industrial Portfolio
Special Servicer, "Prudential Asset Resources Inc. [or the name of any
successor Lion Industrial Portfolio Special Servicer], as Lion Industrial
Portfolio 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 the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, and for the owner of the
Lion Industrial Portfolio Non-Pooled Subordinate Loans, 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 any
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related 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 any
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related 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 a Lion Industrial Portfolio Pooled Mortgage Loan, Lion Industrial
Portfolio Non-Pooled Subordinate Loans or 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 related REO Property as part of the Trust Fund or, if
applicable in the case of any REO Property related to a Non-Trust-Serviced
Pooled Mortgage Loan, on behalf of the Trust and the respective holders of the
related Non-Pooled Mortgage Loan). 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
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applicable 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 applicable 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 Lion Industrial Portfolio Loan
Group, also on behalf of the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder) 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 a Non-Trust-Serviced Pooled Mortgage Loan shall constitute an REO
Property if and when it is acquired under the related 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 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 a
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 carrier, "A" by S&P and "A-"
by Fitch, (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, "A" by S&P and "A-" by Fitch, and (iii) in the case of
any other insurance coverage provided by such insurance carrier, "A" by S&P and
"A-" by Fitch; provided, however, that (A) an insurance carrier shall be deemed
to have the applicable claims-paying
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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 claim-paying ability 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 (and, if the insurance carrier is an issuer
of an insurance policy relating to the Lion Industrial Portfolio Loan Group or
the Lion Industrial Portfolio Mortgaged Property, the Lion Industrial Portfolio
Controlling Party has confirmed in writing that such insurance carrier is
acceptable to it), 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, CMSA Financial 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
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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.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class A-4,
Class X-1 or Class X-2 Certificate.
"Series 2003-IQ5 PSA": That certain Pooling and Servicing Agreement
dated as of September 1, 2003, between Xxxxxx Xxxxxxx Capital I Inc., as
depositor, GMAC Commercial Mortgage Corporation as master servicer, Midland
Loan Services, Inc. as general special servicer, ARCap SI as 200 Berkeley &
Xxxxxxx X. Xxxxx special servicer, LaSalle as trustee, paying agent and
certificate registrar and ABN AMRO as fiscal agent, relating to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2003-IQ5.
"Series 2003-PWR2 PSA": That certain Pooling and Servicing Agreement
dated as of September 1, 2003, between Bear Xxxxxxx Commercial Mortgage
Securities Inc., as depositor, WFB as a master servicer, PAR as a master
servicer, GMAC Commercial Mortgage Corporation as general special servicer, PAR
as 3 Times Square special servicer, LaSalle as trustee, ABN AMRO as fiscal
agent, WFB (successor in interest to Xxxxx Fargo Bank Minnesota, N.A.), as
certificate administrator and tax administrator, and Pru3XSquare, LLC, as 3
Times Square non-pooled subordinate noteholder, relating to the Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2003-PWR2.
"Series 2004-TOP13 PSA": That certain Pooling and Servicing Agreement
dated as of February 1, 2004, between Xxxxxx Xxxxxxx Capital I Inc., as
depositor, WFB as master servicer, ARCap SI as special servicer, LaSalle as
trustee, ABN AMRO as fiscal agent and WFB as paying agent and certificate
registrar, relating to the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-TOP13.
"Serviced Mortgage Loan": Any Mortgage Loan (including a Specially
Serviced Mortgage Loan, but excluding an REO Mortgage Loan) other than a
Non-Trust-Serviced Pooled Mortgage Loan.
"Serviced Pooled Mortgage Loan": Any Pooled Mortgage Loan that is a
Serviced Mortgage Loan. Notwithstanding anything herein to the contrary, none
of the Non-
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Trust-Serviced Pooled Mortgage Loans shall in any event constitute a Serviced
Pooled Mortgage Loan hereunder.
"Servicer Report Administrator": PAR as 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).
"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 applicable 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 a Non-Trust-Serviced
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
applicable 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
applicable Special Servicer to the extent such cost is allocable to a
particular Mortgaged Property that the applicable Master Servicer or
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 applicable 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, a Special
Servicer, the Trustee or the Fiscal Agent,
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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 or similar agreement or (C) costs or expenses expressly
required under this Agreement to be borne by a Master Servicer, a 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 applicable
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
applicable 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 a
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 such Special Servicer,
as the case may be.
"Servicing Released Bid": As defined in Section 7.01(c).
"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 applicable 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 Servicers, 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 Lion
Industrial Portfolio Loan Group, for the benefit of the Certificateholders and
the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder) (as
determined by the applicable Master Servicer or the applicable 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
Lion Industrial Portfolio Loan Group,
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the related Mortgage Loan Group Intercreditor Agreement) 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) 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 applicable Special
Servicer and any Serviced Mortgage Loan that is (A) a Specially Serviced
Mortgage Loan that the applicable Special Servicer determines, in its
reasonable, good faith judgment, will not become a Corrected 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 Lion Industrial Portfolio Loan Group, to the Certificateholders
and the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder), 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 Lion Industrial Portfolio Loan
Group, to the Certificateholders and the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder), as a collective whole, to be
performed at the related Net Mortgage Rate (or, in the case of the Lion
Industrial Portfolio Loan Group, at the weighted average of the Net
Mortgage Rates for the Mortgage Loans in the Lion Industrial Portfolio
Loan Group); and
(c) without regard to (i) any known relationship that the
applicable Master Servicer or applicable 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 Non-Pooled Mortgage
Loan by the applicable Master Servicer or the applicable 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, (iv) the obligation of the
applicable 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 applicable 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 applicable
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 applicable Special Servicer, as the
case may be, or any of its Affiliates of any other
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debt owed by, or secured by ownership interests in, any of the Borrowers
or any Affiliate of a Borrower, and (viii) the obligations of the
applicable Master Servicer or the applicable 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 each
Non-Trust-Serviced Pooled Mortgage Loan and any related REO Property only to
the extent that the applicable Master Servicer or the applicable 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".
"Similar Law": As defined in Section 5.02(c).
"Sole Certificateholder(s)": Any Holder or group of Holders, as the
case may be, of 100% of the then outstanding Certificates.
"Special Servicer": With respect to (i) each Mortgage Loan other than
any Mortgage Loan in the Lion Industrial Portfolio Loan Group, the General
Special Servicer and (ii) each Mortgage Loan in the Lion Industrial Portfolio
Loan Group, the Lion Industrial Portfolio Special Servicer. Each reference in
this Agreement to the "applicable Special Servicer" shall be construed in a
manner consistent with the preceding statement.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Mortgage Loan (other than any REO Property related
to a Non-Trust-Serviced Pooled Mortgage Loan), the fee designated as such and
payable to the applicable 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 a 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.
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"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 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;
(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 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; and
(vi) except in the case of a 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 shall be delivered to the applicable Master Servicer with a copy
to be contained in the Mortgage File).
"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
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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
the Lion Industrial Portfolio Non-Pooled Subordinate Loans, in respect of
the Lion Industrial Portfolio Pooled Mortgage Loans) 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 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 after the
date of such Balloon Payment, 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 applicable 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
the Lion Industrial Portfolio Non-Pooled Subordinate Loans, the interests
of the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder),
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
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(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 applicable 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 applicable Special Servicer pursuant to Section
3.20);
(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 applicable 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 applicable
Special Servicer; and
(z) with respect to the circumstances described in clause (h)
above, such proceedings are terminated.
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Notwithstanding the foregoing, if a Servicing Transfer Event exists
as contemplated above in this definition for any Mortgage Loan in the Lion
Industrial Portfolio Loan Group it shall be deemed to exist for the other
Mortgage Loans in the Lion Industrial Portfolio 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 any 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 Special Servicer pursuant to Section 3.20 (or, in the case of any
Non-Trust-Serviced Pooled Mortgage Loan, by the applicable Non-Trust Master
Servicer or the applicable Non-Trust Special Servicer pursuant to the related
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.
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"Sub-Servicer": Any Person with which a Master Servicer or a Special
Servicer has entered into a Sub-Servicing Agreement in accordance with the
terms hereof.
"Sub-Servicing Agreement": The written contract between a Master
Servicer or a Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": 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.
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"Transferor": Any Person who is disposing by Transfer of any
Ownership Interest in a Certificate.
"Trinity Centre Intercreditor Agreement": That certain Intercreditor
Agreement dated as of December 31, 2003, between BSCMI as initial note A-1
holder and BSCMI as initial note A-2 holder.
"Trinity Centre Loan Pair": The Trinity Centre Pooled Mortgage Loan
and the Trinity Centre Non-Pooled Pari Passu Companion Loan, together.
"Trinity Centre Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Trinity Centre".
"Trinity Centre Non-Pooled Pari Passu Companion Loan": The mortgage
loan, with a Cut-off Date Principal Balance of $59,100,000, that is secured by
the same Mortgage on the Trinity Centre Mortgaged Property as the Trinity
Centre Pooled Mortgage Loan. The Trinity Centre Non-Pooled Pari Passu
Companion Loan is not a "Mortgage Loan", a "Serviced Mortgage Loan" or part of
the Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Trinity Centre Pooled Mortgage Loan": The Pooled Mortgage Loan
secured by the Trinity Centre Mortgaged Property.
"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.
"Trustee Fee Rate": Twenty-four ten-thousandths of one percent
(0.0024%) per annum.
"Two Commerce Square Intercreditor Agreement": That certain A Note
Intercreditor Agreement dated as of September 30, 2003, between Xxxxxx Xxxxxxx
Mortgage Capital Inc. as initial A1 noteholder, Xxxxxx Xxxxxxx Mortgage
Capital Inc. as initial A2 noteholder, Xxxxxx Xxxxxxx Mortgage Capital Inc. as
initial A3 noteholder and Xxxxxx Xxxxxxx Mortgage Capital Inc. as initial A4
noteholder.
"Two Commerce Square Loan Pair": The Two Commerce Square Pooled
Mortgage Loan and the Two Commerce Square Non-Pooled Pari Passu Companion
Loan, together.
"Two Commerce Square Mortgaged Property": The Mortgaged Property
identified on the Pooled Mortgage Loan Schedule as "Two Commerce Square".
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"Two Commerce Square Non-Pooled Pari Passu Companion Loan": The
mortgage loan, comprised of two promissory notes, with an aggregate Cut-off
Date Principal Balance in the amount of $64,711,587, that is secured by the
same Mortgage on the Two Commerce Square Mortgaged Property as the Two Commerce
Square Pooled Mortgage Loan and is pari passu in right of payment to the Two
Commerce Square Pooled Mortgage Loan. The Two Commerce Square Non-Pooled Pari
Passu Companion Loan is not a "Mortgage Loan", a "Serviced Mortgage Loan" or
part of the Trust Fund, any REMIC Pool or either Grantor Trust Pool.
"Two Commerce Square Pooled Mortgage Loan": The Pooled Mortgage Loan
secured by the Two Commerce Square Mortgaged Property.
"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).
"Underwriters": Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage
Services, LLC.
"Underwriter Exemption": PTE 90-30 issued to Bear, Xxxxxxx & Co.
Inc., PTE 90-29 issued to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
or PTE 89-88 issued to Xxxxxxx, Sachs & Co., each as amended by XXX 00-00, XXX
0000-00 and PTE 2002-41 and as may be subsequently amended following the
Closing Date.
"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
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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 files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File, the CMSA Loan Setup File, the CMSA
Loan Periodic Update File, the CMSA Property File and the Restricted Servicer
Reports) and the ARCap Realized Loss Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers
established by the Mortgage Bankers Association of America.
"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 among all the Holders of the various Classes of Interest Only
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 March 4, 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
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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
applicable 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;
(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.
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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 Lion Industrial Portfolio Pooled
Mortgage Loans and the Non-Trust-Serviced Pooled Mortgage Loans), 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 the
extent of its entire remaining
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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 Lion Industrial
Portfolio Loan Group or any 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 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 Lion Industrial
Portfolio Loan Group or any related REO Property shall be applied in
accordance with Section 3 or Section 4, as applicable, of the Lion Industrial
Portfolio Intercreditor Agreement. If any out-of-pocket expense incurred under
this Agreement relate, in the good faith, reasonable judgment of the
applicable Master Servicer, the applicable Special Servicer, the Trustee, the
Fiscal Agent, the Certificate Administrator or the Tax Administrator, as
applicable, primarily to the general administration of the Trust Fund (and is
not attributable to any particular mortgage loans), any REMIC Pool or to any
determination respecting the amount, payment or avoidance of any tax on the
Trust Fund under the REMIC Provisions or consists of the actual payment of any
REMIC tax or expense, then such expense shall not be borne by the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder. Section 1.03 and
Section 3.05(a) of this Agreement shall be construed in accordance with the
preceding statement. The parties acknowledge that any payments, collections
and recoveries received by the parties to the Non-Trust Servicing Agreement
related to each Non-Trust-Serviced Pooled Mortgage Loan are required to be
allocated by such parties in
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accordance with the terms and conditions of the related Mortgage Loan Group
Intercreditor Agreement and such Non-Trust-Serviced Pooled Mortgage Loan.
(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 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 powers of the applicable Master Servicer and/or the
applicable 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-PWR3". 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 Due Dates
for the Original Pooled Mortgage Loans in March 2004 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 a 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 the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, 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.
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(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 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 March 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
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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 deliver such
document or instrument to the Trustee or a Custodian appointed thereby promptly
upon such Pooled Mortgage Loan Seller's receipt thereof), so long as a copy of
such document or instrument, certified by the related Pooled Mortgage Loan
Seller or title agent as being a copy of the document deposited for recording
or filing, 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 Loans), 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
deliver such document or instrument to the Trustee or a Custodian appointed
thereby promptly upon such Pooled Mortgage Loan Seller's receipt thereof) so
long as a copy of such document or instrument, certified by the related Pooled
Mortgage Loan Seller or title agent as being a copy of the document deposited
for recording or filing, 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 any 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 WFB Pooled Mortgage Loan, if any, as to which
there exists a secured creditor impaired property insurance 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 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
each Non-Trust-Serviced Pooled Mortgage Loan, the parties 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
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related Non-Trust Servicing Agreement, except to the extent that the absence
of such document does not violate the terms of such Non-Trust Servicing
Agreement. In addition, with respect to each Non-Trust-Serviced Pooled
Mortgage Loan, the parties 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 either 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 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 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. 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 the Trustee shall obtain therefrom a copy of the recorded original.
At such time as such assignments or verifications of electronic filing have
been returned to the Trustee, the Trustee shall forward a copy thereof to the
applicable Master Servicer. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect
therein, the 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 shall, upon receipt thereof, cause
the same to be duly recorded or filed, as appropriate. If any 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 each Pooled Mortgage Loan Seller shall be
responsible for paying the reasonable fees and out-of-pocket expenses of the
Trustee in connection with the above-referenced recording and filing of
documents insofar as it relates to the Original Pooled Mortgage Loans
(exclusive of the Non-Trust-Serviced Pooled Mortgage Loans, if any, for which
such Pooled Mortgage Loan Seller is the applicable Pooled Mortgage Loan Seller)
sold by such Pooled Mortgage Loan Seller under the related Pooled Mortgage Loan
Purchase Agreement, as and to the extent provided for in such Pooled Mortgage
Loan Purchase Agreement; provided that no Pooled Mortgage Loan Seller shall
actually record or file any such documents.
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(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 any of the Non-Trust-Serviced
Pooled Mortgage Loans): (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
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 the Lion Industrial Portfolio Non-Pooled Subordinate Loans,
on behalf of and for the benefit of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder).
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 for
the Lion Industrial Portfolio Pooled Mortgage Loans relates to the Lion
Industrial Portfolio Non-Pooled Subordinate Loans, the Trustee shall also hold
such Mortgage File in trust for the use and benefit of the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder. Each Master Servicer acknowledges
receipt of
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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,
and further that a copy of each Mortgage Loan Group Intercreditor Agreement is
in its possession or the possession of a Custodian on its behalf.
(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), every 90 days
thereafter 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 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 Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder 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 any 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 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; and (iv)
based on the examinations referred to in 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
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definition of "Pooled Mortgage Loan Schedule" accurately reflects the
information set forth in the related Mortgage File.
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.
(c) None of the Depositor, the Certificate Administrator, the Trustee,
the Master Servicers, the Special Servicers 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 Servicers 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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(d) 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 any 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 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 applicable 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
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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 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 applicable 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) 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
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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 any 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:
(s) 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 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
(t) 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
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(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 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 3.10, provide the applicable Master Servicer with a
limited power of attorney that enables the applicable Master Servicer to
execute) the modification of the 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) 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.
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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 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 applicable 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 applicable 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.
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(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 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). In connection with any
such repurchase or substitution by the related Pooled Mortgage Loan Seller,
each of the Master Servicers and the Special Servicers 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 such
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, a 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 applicable 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 applicable Special
Servicer may) 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 applicable 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 applicable 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
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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 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
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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.
(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.
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(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.
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(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.
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
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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.
(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 General Special
Servicer.
(a) The General 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 General Special Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, the General 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
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failure to so qualify or comply would not adversely affect the General
Special Servicer's ability to perform its obligations under this
Agreement.
(ii) The General Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
General 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 General Special Servicer, is likely to affect materially
and adversely the ability of the General Special Servicer to perform its
obligations under this Agreement.
(iii) The General Special Servicer has the full power and
authority to enter into and consummate all transactions involving the
General 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 General Special Servicer, enforceable
against the General 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 General 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 General Special Servicer's good faith
and reasonable judgment, is likely to affect materially and adversely the
ability of the General 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 General Special 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 the General Special
Servicer to perform its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General
Special Servicer's knowledge, threatened against the General Special
Servicer that, if determined adversely to the General Special Servicer,
would prohibit the General Special Servicer from entering into this
Agreement or that, in the General Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the General Special Servicer to perform its obligations under
this Agreement.
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(viii) The General 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 General 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 General 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. Representations and Warranties of the Lion Industrial
Portfolio Special Servicer.
(a) The Lion Industrial Portfolio 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 Lion Industrial Portfolio Special Servicer is duly
organized, validly existing and in good standing as a Delaware
corporation, and the Lion Industrial Portfolio 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 the Lion Industrial Portfolio Loan Group and to perform its
obligations under this Agreement, except where the failure to so qualify
or comply would not adversely affect the Lion Industrial Portfolio
Special Servicer's ability to perform its obligations under this
Agreement.
(ii) The Lion Industrial Portfolio Special Servicer's execution
and delivery of, performance under and compliance with this Agreement
will not violate the Lion Industrial Portfolio 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 Lion
Industrial Portfolio Special Servicer, is likely to affect materially and
adversely the ability of the Lion Industrial Portfolio Special Servicer
to perform its obligations under this Agreement.
(iii) The Lion Industrial Portfolio Special Servicer has the
requisite power and authority to enter into and consummate all
transactions involving the Lion Industrial Portfolio 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.
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(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 Lion Industrial Portfolio Special Servicer,
enforceable against the Lion Industrial Portfolio 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 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 Lion Industrial Portfolio 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 Lion
Industrial Portfolio Special Servicer's reasonable judgment, is likely to
affect materially and adversely the ability of the Lion Industrial
Portfolio Special 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 the Lion Industrial Portfolio Special Servicer of the
transactions contemplated herein, except for those consents, approvals,
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 Lion Industrial
Portfolio Special Servicer to perform its obligations under this
Agreement.
(vii) No litigation is pending or, to the best of the Lion
Industrial Portfolio Special Servicer's knowledge, threatened against the
Lion Industrial Portfolio Special Servicer that, if determined adversely
to the Lion Industrial Portfolio Special Servicer, would prohibit the
Lion Industrial Portfolio Special Servicer from entering into this
Agreement or that, in the Lion Industrial Portfolio Special Servicer's
good faith and reasonable judgment, is likely to materially and adversely
affect the ability of the Lion Industrial Portfolio Special Servicer to
perform its obligations under this Agreement.
(viii) The Lion Industrial Portfolio Special Servicer has errors
and omissions insurance in the amounts and the coverage required by
Section 3.07(d).
(b) The representations and warranties of the Lion Industrial
Portfolio Special Servicer set forth in Section 2.08(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 Lion Industrial Portfolio 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 2.08(a), subject to such
appropriate modifications to the representation and warranty
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set forth in Section 2.08(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 2.09. 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 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
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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
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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 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.
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(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.
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.
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(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
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.
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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 a 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 the Lion Industrial Portfolio Subordinate
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 Lion Industrial
Portfolio Loan Group, subject to the rights of the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder), 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 a 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
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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 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, further, by any Realized Losses and Additional Trust Fund
Expenses deemed allocated to such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.04(c). Except as provided in the
preceding sentence, 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 applicable 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 applicable 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
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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 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).
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(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-two (32) 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".
(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
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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, further, by
any Realized Losses and Additional Trust Fund Expenses deemed allocated to such
REMIC II Regular Interest on such Distribution Date pursuant to Section
4.04(b). Except as provided in the preceding sentence, 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 Section such Section 4.01(i).
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(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
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 (20) Classes
of Regular Interest Certificates. The Class X-1 Certificates shall
collectively represent all of the REMIC III Components whose designations are
set forth in the first paragraph 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 set forth in the second paragraph 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
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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,
further, by any Realized Losses and/or Additional Trust Fund Expenses
allocated to such Class of Certificates on such Distribution Date pursuant to
Section 4.04(a). Except as provided in the preceding sentence, 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 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 March 2005, the aggregate of the Component Notional
Amounts of all the REMIC III Components of the Class X-2 Certificates; (B)
subsequent to the Distribution Date in March 2005 through and including the
Distribution Date in March 2006, the aggregate of the Component Notional
Amounts of REMIC III Components X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0,
X0-X-0, X0-X-0, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F, X0-X-0, X0-X-0, X0-X-0,
X0-X-0, X0-X, X0-X and X2-L; (C) subsequent to the Distribution Date in March
2006 through and including the Distribution Date in March 2007, the aggregate
of the Component Notional Amounts of REMIC III Components X2-A-1-4, ,
X2-A-1-5, X2-A-2, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0, X0-X-0, X0-X-0, X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F, X2-G-1,
X2-G-2 and X2-H-2; (D) subsequent to the Distribution Date in March 2007
through and including the Distribution Date in March 2008, the aggregate of
the Component Notional Amounts of REMIC III Components X0-X-0-0, X0-X-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0,
X2-C-1, X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F and X2-G-2; (E)
subsequent to the Distribution Date in March 2008 through and including the
Distribution Date in March 2009, the aggregate of the Component Notional
Amounts of REMIC III Components X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0-0, X0-X-0, X0-X-0, X0-X-0, X2-C-2, X2-D-1, X2-D-2 and X2-E-2; (F)
subsequent to the Distribution Date in March 2009 through and including the
Distribution
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Date in March 2010, the aggregate of the Component Notional Amounts of REMIC
III Components X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0, X0-X-0,
X2-C-2 and X2-D-2; (G) subsequent to the Distribution Date in March 2010
through and including the Distribution Date in March 2011, the aggregate of the
Component Notional Amounts of REMIC III Components X0-X-0-0, X0-X-0-0, X0-X-0,
X0-X-0 and X2-C-2; (H) subsequent to the Distribution Date in March 2011
through and including the Distribution Date in March 2012, the aggregate of the
Component Notional Amounts of REMIC III Components X2-A-4-3 and X2-B-2; and (I)
subsequent to the Distribution Date in March 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, each REMIC III
Component of the Class X-1 Certificates and each REMIC III Component of the
Class X-2 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
3.236% per annum; (b) with respect to the Class A-2 Certificates, an annual
rate equal to 3.869% per annum; (c) with respect to the Class A-3
Certificates, an annual rate equal to 4.487% per annum; (d) with respect to
the Class A-4 Certificates, an annual rate equal to the 4.715% per annum; (e)
with respect to the Class B Certificates, an annual rate equal to the lesser
of (i) 4.810% per annum and (ii) the REMIC II Remittance Rate in respect of
REMIC II Regular Interests B-1 and B-2 for the subject Interest Accrual
Period; (f) with respect to the Class C Certificates, an annual rate equal to
the lesser of (i) 4.850% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interests C-1 and C-2 for the subject Interest
Accrual Period; (g) with respect to the Class D Certificates, an annual rate
equal to the lesser of (i) 4.889% per annum and (ii) the REMIC II Remittance
Rate in respect of REMIC II Regular Interests D-1 and D-2 for the subject
Interest Accrual Period; (h) with respect to the Class E Certificates, an
annual rate equal to the lesser of (i) 4.998% per annum and (ii) the REMIC II
Remittance Rate in respect of REMIC II Regular Interests E-1 and E-2 for the
subject Interest Accrual Period; (i) with respect to the Class F Certificates,
an annual rate equal to the lesser of (i) 5.199% per annum and (ii) the REMIC
II Remittance Rate in respect of REMIC II Regular Interest F for the subject
Interest Accrual Period; (j) with respect to the Class G Certificates, an
annual rate equal to the lesser of (i) 5.305% per annum and (ii) the REMIC II
Remittance Rate in respect of REMIC II Regular Interests G-1 and G-2 for the
subject Interest Accrual Period; (k) with respect to the Class H Certificates,
an annual rate equal to the REMIC II Remittance Rate in respect of REMIC II
Regular Interests H-1 and H-2 for the subject Interest Accrual Period; (l)
with respect to the Class J Certificates, an annual rate equal to the lesser
of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in respect of
REMIC II Regular Interest J for the subject Interest Accrual Period; (m) with
respect to the Class K Certificates, an annual rate equal to the
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lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest K for the subject Interest Accrual
Period; (n) with respect to the Class L Certificates, an annual rate equal to
the lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest L for the subject Interest Accrual
Period; (o) with respect to the Class M Certificates, an annual rate equal to
the lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest M for the subject Interest Accrual
Period; (p) with respect to the Class N Certificates, an annual rate equal to
the lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest N for the subject Interest Accrual
Period; (q) with respect to the Class P Certificates, an annual rate equal to
the lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest P for the subject Interest Accrual
Period; (r) with respect to the Class Q Certificates, an annual rate equal to
the lesser of (i) 5.025% per annum and (ii) the REMIC II Remittance Rate in
respect of REMIC II Regular Interest Q for the subject Interest Accrual
Period; (s) with respect to each REMIC III Component of the Class X-1
Certificates, an annual rate equal to the greater of (I) zero and (II) the
excess, if any, of (i) the Weighted Average REMIC I Remittance Rate for such
Interest Accrual Period, over (ii) the Adjusted REMIC II Remittance Rate for
such Interest Accrual Period applicable to the REMIC II Regular Interest that
is the Corresponding REMIC II Regular Interest for such REMIC III Component;
(t) with respect to the Class X-1 Certificates, an annual rate equal to the
weighted average (expressed as a percentage and rounded to six decimal places)
of the Pass-Through 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 Amounts of such REMIC III
Components outstanding immediately prior to the related Distribution Date; (u)
with respect to each REMIC III Component of the Class X-2 Certificates, an
annual rate equal to the greater of (I) zero and (II) the excess, if any, of
(i) the Adjusted REMIC II Remittance Rate for such Interest Accrual Period
applicable to the REMIC II Regular Interest that is the Corresponding REMIC II
Regular Interest for such REMIC III Component, over (ii) a rate per annum that
is the same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class of Principal Balance Certificates that has a
Corresponding REMIC II Regular Interest that is also the sole Corresponding
REMIC II Regular Interest for such REMIC III Component of the Class X-2
Certificates; and (v) with respect to the Class X-2 Certificates, an annual
rate equal to the weighted average (expressed as a percentage and rounded to
six decimal places) of the Pass-Through 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 March 2012, the Pass-Through Rate of the Class X-2
Certificates shall equal 0% per annum. For purposes of clause (v) of the
immediately preceding sentence, the Pass-Through Rate of the Class X-2
Certificates: (A) 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 March 2005, shall be calculated taking
into account the respective Pass-Through Rates of all the REMIC III Components
of the Class X-2 Certificates (that is, REMIC III Components X0-X-0-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0, X0-X-0, X2-C-2, X2-D-1, X2-D-2, X2-E-1,
X2,-E-2, X2-F, X0-X-0, X0-X-0, X0-X-0, X0-X-0, X0-X, X0-X and X2-L); (B) for
each Interest Accrual Period subsequent to the Interest Accrual Period related
to the Distribution Date in March 2005 through
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and including the Interest Accrual Period related to the Distribution Date in
March 2006, shall be calculated taking into account only the respective
Pass-Through Rates of REMIC III Components X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0,
X0-X-0, X0-X-0, X0-X-0, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F, X0-X-0, X0-X-0,
X0-X-0, X0-X-0, X0-X, X0-X and X2-L; (C) for each Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution Date in
March 2006 through and including the Interest Accrual Period related to the
Distribution Date in March 2007, shall be calculated taking into account only
the respective Pass-Through Rates of REMIC III Components X0-X-0-0, X0-X-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X, X0-X-0,
X2-C-2, X2-D-1, X2-D-2, X2-E-1, X2-E-2, X2-F, X2-G-1, X2-G-2 and X2-H-2; (D)
for each Interest Accrual Period subsequent to the Interest Accrual Period
related to the Distribution Date in March 2007 through and including the
Interest Accrual Period related to the Distribution Date in March 2008, shall
be calculated taking into account only the respective Pass-Through Rates of
REMIC III Components X0-X-0-0, X0-X-0, X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0, X2-C-1, X2-C-2, X2-D-1, X2-D-2, X2-E-1,
X2-E-2, X2-F and X2-G-2; (E) for each Interest Accrual Period subsequent to
the Interest Accrual Period related to the Distribution Date in March 2008
through and including the Interest Accrual Period related to the Distribution
Date in March 2009, shall be calculated taking into account only the
respective Pass-Through Rates of REMIC III Components X0-X-0-0, X0-X-0-0,
X0-X-0-0, X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0, X0-X-0, X2-C-2, X2-D-1, X2-D-2
and X2-E-2; (F) for each Interest Accrual Period subsequent to the Interest
Accrual Period related to the Distribution Date in March 2009 through and
including the Interest Accrual Period related to the Distribution Date in
March 2010, shall be calculated taking into account only the respective
Pass-Through Rates of REMIC III Components X0-X-0-0, X0-X-0-0, X0-X-0-0,
X0-X-0-0, X0-X-0, X0-X-0, X0-X-0, X0-X-0 and X2-D-2; (G) for each Interest
Accrual Period subsequent to the Interest Accrual Period related to the
Distribution Date in March 2010 through and including the Interest Accrual
Period related to the Distribution Date in March 2011, shall be calculated
taking into account only the respective Pass-Through Rates of REMIC III
Components X0-X-0-0, X0-X-0-0, X0-X-0, X0-X-0 and X2-C-2; and (H) for each
Interest Accrual Period subsequent to the Interest Accrual Period related to
the Distribution Date in March 2011 through and including the Interest Accrual
Period related to the Distribution Date in March 2012, shall be calculated
taking into account only the respective Pass-Through Rates of REMIC III
Components X2-A-4-3 and X2-B-2.
The "Adjusted REMIC II Remittance Rate" for each REMIC II Regular
Interest for any Interest Accrual Period for purposes of the definition of
"Pass-Through Rate" is:
(1) with respect to REMIC II Regular Interest A-1-1, a rate per
annum that is the same as the fixed Pass-Through Rate for the Class A-1
Certificates;
(2) with respect to REMIC II Regular Interest A-1-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2005,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-1 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual
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Period related to the Distribution Date in March 2005, a rate per annum
that is equal to the fixed Pass-Through Rate for the Class A-1
Certificates;
(3) with respect to REMIC II Regular Interest A-1-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2006,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-1 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2006, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-1 Certificates;
(4) with respect to REMIC II Regular Interest A-1-4, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2007,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-1 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2007, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-1 Certificates;
(5) with respect to REMIC II Regular Interest A-1-5, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2008,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-1 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2008, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-1 Certificates;
(6) with respect to REMIC II Regular Interest A-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2008,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-2 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2008, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-2 Certificates;
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(7) with respect to REMIC II Regular Interest A-3-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2008,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-3 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2008, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-3 Certificates;
(8) with respect to REMIC II Regular Interest A-3-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2009,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-3 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2009, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-3 Certificates;
(9) with respect to REMIC II Regular Interest A-3-3, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2010,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-3 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2010, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-3 Certificates;
(10) with respect to REMIC II Regular Interest A-4-1, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2010,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-4 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2010, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-4 Certificates;
(11) with respect to REMIC II Regular Interest A-4-2, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2011,
an annual rate equal to the greater of (A) a rate per
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annum that is the same as the fixed Pass-Through Rate for the Class A-4
Certificates and (B) a rate per annum that is equal to 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, and (ii)
for each Interest Accrual Period after the Interest Accrual Period related
to the Distribution Date in March 2011, a rate per annum that is equal to
the fixed Pass-Through Rate for the Class A-4 Certificates;
(12) with respect to REMIC II Regular Interest A-4-3, (i) for
any Interest Accrual Period from and including the Interest Accrual
Period related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2012,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the fixed Pass-Through Rate for the Class A-4 Certificates and
(B) a rate per annum that is equal to 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, and (ii) for each
Interest Accrual Period after the Interest Accrual Period related to the
Distribution Date in March 2012, a rate per annum that is equal to the
fixed Pass-Through Rate for the Class A-4 Certificates;
(13) with respect to REMIC II Regular Interest B-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2011,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class B Certificates and (B) a rate per annum that
is equal to 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, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution
Date in March 2011, a rate per annum that is equal to the Pass-Through
Rate in effect during the subject Interest Accrual Period for the Class B
Certificates;
(14) with respect to REMIC II Regular Interest B-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2012,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class B Certificates and (B) a rate per annum that
is equal to 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, and (ii) for any Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution
Date in March 2012, a rate per annum that is equal to the Pass-Through
Rate in effect during the subject Interest Accrual Period for the Class B
Certificates;
(15) with respect to REMIC II Regular Interest C-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2010, a
rate per annum equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class C Certificates and (B) a rate per annum that
is equal to the
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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, and (ii) for any Interest Accrual Period subsequent to the
Interest Accrual Period related to the Distribution Date in March 2010, a
rate per annum that is equal to the Pass-Through Rate in effect during the
subject Interest Accrual Period for the Class C Certificates;
(16) with respect to REMIC II Regular Interest C-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2011,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class C Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2011, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class C
Certificates;
(17) with respect to REMIC II Regular Interest D-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2009,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class D Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2009, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class D
Certificates;
(18) with respect to REMIC II Regular Interest D-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2010,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class D Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2010, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class D
Certificates;
(19) with respect to REMIC II Regular Interest E-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2008,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class E Certificates and (B) a rate per annum that
is equal to the
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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, and (ii) for each Interest Accrual Period after the Interest
Accrual Period related to the Distribution Date in March 2008, a rate per
annum that is equal to the Pass-Through Rate in effect during the subject
Interest Accrual Period for the Class E Certificates;
(20) with respect to REMIC II Regular Interest E-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2009,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class E Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2009, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class E
Certificates;
(21) with respect to REMIC II Regular Interest F, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2008,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class F Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2008, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class F
Certificates;
(22) with respect to REMIC II Regular Interest G-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2007,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class G Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2007, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class G
Certificates;
(23) with respect to REMIC II Regular Interest G-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the
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initial Distribution Date through and including the Interest Accrual
Period related to the Distribution Date in March 2008, an annual rate
equal to the greater of (A) a rate per annum that is the same as the
Pass-Through Rate in effect during the subject Interest Accrual Period
for the Class G Certificates and (B) a rate per annum that is equal to
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, and (ii) for each Interest Accrual Period subsequent to
the Interest Accrual Period related to the Distribution Date in March
2008, a rate per annum that is equal to the Pass-Through Rate in effect
during the subject Interest Accrual Period for the Class G Certificates;
(24) with respect to REMIC II Regular Interest H-1, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2006,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class H Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
subsequent to the Interest Accrual Period related to the Distribution
Date in March 2006, a rate per annum that is equal to the Pass-Through
Rate in effect during the subject Interest Accrual Period for the Class H
Certificates;
(25) with respect to REMIC II Regular Interest H-2, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2007,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class H Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2007, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class H
Certificates;
(26) with respect to REMIC II Regular Interest J, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2006,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class J Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2006, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class J
Certificates;
(27) with respect to REMIC II Regular Interest K, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2006,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class K Certificates and (B) a rate per annum that
is equal to the
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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, and (ii) for each Interest Accrual Period after the Interest
Accrual Period related to the Distribution Date in March 2006, a rate per
annum that is equal to the Pass-Through Rate in effect during the subject
Interest Accrual Period for the Class K Certificates;
(28) with respect to REMIC II Regular Interest L, (i) for any
Interest Accrual Period from and including the Interest Accrual Period
related to the initial Distribution Date through and including the
Interest Accrual Period related to the Distribution Date in March 2006,
an annual rate equal to the greater of (A) a rate per annum that is the
same as the Pass-Through Rate in effect during the subject Interest
Accrual Period for the Class L Certificates and (B) a rate per annum that
is equal to 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, and (ii) for each Interest Accrual Period
after the Interest Accrual Period related to the Distribution Date in
March 2006, a rate per annum that is equal to the Pass-Through Rate in
effect during the subject Interest Accrual Period for the Class L
Certificates;
(29) with respect to REMIC II Regular Interest M, a rate per
annum that is the same as the Pass-Through Rate in effect during the
subject Interest Accrual Period for the Class M Certificates;
(30) with respect to REMIC II Regular Interest N, a rate per
annum that is the same as the Pass-Through Rate in effect during the
subject Interest Accrual Period for the Class N Certificates;
(31) with respect to REMIC II Regular Interest P, a rate per
annum that is the same as the Pass-Through Rate in effect during the
subject Interest Accrual Period for the Class P Certificates; and
(32) with respect to REMIC II Regular Interest Q, a rate per
annum that is the same as the Pass-Through Rate in effect during the
subject Interest Accrual Period for the Class Q Certificates.
(g) Solely for purposes of satisfying Treasury Regulations Section
1.860G-1(a)(4)(iii), the Latest Possible Maturity Date for each Class of
Principal Balance Certificates, each REMIC III Component of the Class X-1
Certificates and each REMIC III Component of the Class X-2 Certificates is the
Rated Final Distribution Date.
(h) 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 ARD
Mortgage Loans and/or any successor REO Pooled
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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 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 each 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 the Lion Industrial Portfolio Loan Group, of the
Certificateholders and the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder), 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 Servicers pursuant to this Agreement, no provision herein contained
shall be construed as an express or implied guarantee by either Master
Servicer or either Special Servicer of the collectability 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 such 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, a Special Servicer, the
Trustee or the Fiscal Agent is intended solely to provide liquidity for the
benefit of the Certificateholders and, if applicable, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, 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 the Lion Industrial
Portfolio Loan Group, to the Certificateholders and the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder) 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) each 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 for which it is the applicable
Special Servicer, and (y) each Administered REO Property for which it is the
applicable Special Servicer; 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
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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 applicable Special Servicer within three Business Days
following its receipt of any collections on any Specially Serviced Mortgage
Loan, such 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 or the Lion Industrial Portfolio
Non-Pooled Subordinate 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 the Lion Industrial
Portfolio Loan Group in its entirety (but any other 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 Servicers 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 each Special Servicer (with respect
to the Specially Serviced Mortgage Loans), in its own name or in the name of
the Trustee, is hereby authorized and empowered by the Trustee (in the case of
each Serviced Pooled Mortgage Loan) or by the Trustee and the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder (in the case of the Lion
Industrial Portfolio Loan Group) to execute and deliver, on behalf of the
Certificateholders and the Trustee (in the case of each Serviced Pooled
Mortgage Loan) or on behalf of the Certificateholders, the Trustee and the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder (in the case of
the Lion Industrial Portfolio Loan Group) 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, 3.24 and 3.25, 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),
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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 either Special Servicer, furnish, or cause to be so furnished, to
such Master Servicer or such 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 such 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 each 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 a 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 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.
(c) The applicable Master Servicer or the applicable 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 each 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 Special
Servicer and the other Special Servicer or a Master Servicer and a 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,
the Lion Industrial Portfolio Loan Group shall be serviced and administered
under this Agreement only for as long as one or both of the Lion Industrial
Portfolio Pooled Mortgage Loans or a 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 each Non-Trust-Serviced
Pooled Mortgage Loan is subject to the terms and conditions of the related
Mortgage Loan Group
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Intercreditor Agreement. The parties hereto recognize the respective rights
and obligations of the "Holders" and "Lenders" under the Mortgage Loan Group
Intercreditor Agreement for each 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 Loan and the making of payments to the
"Holders" and "Lenders" in accordance with such Mortgage Loan Group
Intercreditor Agreement and the related Non-Trust Servicing Agreement. The
parties hereto further acknowledge that, pursuant to the Mortgage Loan Group
Intercreditor Agreement for each Non-Trust-Serviced Pooled Mortgage Loan, such
Non-Trust-Serviced Pooled Mortgage Loan and the related Non-Pooled Pari Passu
Companion Loan are to be serviced and administered by the related Non-Trust
Master Servicer and related Non-Trust Special Servicer in accordance with the
related Non-Trust Servicing Agreement. Although each Non-Trust-Serviced Pooled
Mortgage Loan is not a Serviced Mortgage Loan 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 each 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 Loan, or any related REO Property with respect
thereto, are being serviced and administered under the related 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 related Non-Trust Master Servicer and/or the related 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 any 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 General 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, if (i) the Trustee
is requested to take any action in its capacity as holder of any
Non-Trust-Serviced Pooled Mortgage Loan, pursuant to the related Mortgage Loan
Group Intercreditor Agreement and/or the related 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 such
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 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, or if no such written direction is received within a reasonable
period of time (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), as it deems to be in the best interests
of the Certificateholders (as a collective whole); and
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provided, further, that the Trustee may not approve the adoption of any
Non-Trust Servicing Agreement that is the successor to and/or in replacement
of the Non-Trust Servicing Agreement in effect as of the Closing Date unless
it receives 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 that the servicing and administration of the related
Non-Trust-Serviced Pooled Mortgage Loan or any related REO Property under such
new servicing agreement would not result in an Adverse Rating Event with
respect to any Class of Rated Certificates; and provided, further, that if the
Trustee's consent is sought with respect to any action under the related
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). Subject to the terms of the
next paragraph, the Controlling Class Representative may direct the Trustee in
writing to exercise any rights that the Trustee, as the holder of a
Non-Trust-Serviced Pooled Mortgage Loan, may have under the related Non-Trust
Servicing Agreement to waive any event of default thereunder. During the
continuation of any event of default or other default under any Non-Trust
Servicing Agreement, the Trustee 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 related 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, the terms of any Mortgage Loan 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, a 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.
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(h) With respect to each of (x) the subordinate mortgage loan in the
original principal amount of $750,000 that is secured by the same Mortgaged
Property as the Pooled Mortgage Loan identified in the Pooled Mortgage Loan
Schedule as "Heights Plaza" and (y) the subordinate mortgage loan in the
original principal amount of $610,000 that is secured by the same Mortgaged
Property as the Pooled Mortgage Loan identified on the Pooled Mortgage Loan
Schedule as "Valley Plaza Shopping Center", (1) subject to the right of the
holder of such subordinate loan to receive payments directly from the related
Borrower at all times prior to the occurrence of a default under the related
Pooled Mortgage Loan, such mortgage loan shall be serviced and administered
hereunder by the applicable Master Servicer or the applicable Special
Servicer, as the case may be, for the benefit of the Trustee, the
Certificateholders and the holder of such subordinate mortgage loan as a
collective whole and in accordance with the related intercreditor agreement
and (2) the Servicing Standard hereunder shall be construed accordingly. The
holder of each such subordinate mortgage loan shall be a third party
beneficiary of this paragraph and no amendment of this paragraph may be made
without the consent of such holder to the extent that such amendment would
materially and adversely affect the interests of such holder.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) The applicable Master Servicer and the applicable 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 Servicers 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 a 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 such 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, 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
applicable Special Servicer, which shall have, as and to the extent
contemplated by Section 3.24 and/or, if a Mortgage Loan in the Lion Industrial
Portfolio Loan Group is involved, Section 3.25, obtained the consent of the
Controlling Class Representative and/or the Lion Industrial Portfolio
Controlling Party, as applicable.
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(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
applicable Special Servicer) and shall request confirmation that the Balloon
Payment will be paid by such maturity date.
(c) With respect to each 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
applicable 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) with respect to each Non-Trust-Serviced Pooled Mortgage
Loan, the related Mortgaged Property or any related REO Property, the
applicable Master Servicer shall, on the day of receipt thereof, if such
Master Servicer is the same Person or an Affiliate of the related
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 applicable Non-Trust Master Servicer or
any other party under the related 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 a
Non-Trust-Serviced Pooled Mortgage Loan (other than the Balloon Payment
due on the Two Commerce Square Non-Trust-Serviced Pooled Mortgage Loan
due on May 9, 2013) during such Collection Period (or, in the case of the
Two Commerce Square Pooled Mortgage Loan, due in the calendar month in
which such Collection Period ends) 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 Non-Trust Servicing Agreement or the
related 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
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day after the date on which the applicable Non-Trust Master Servicer is
required to remit such Monthly Payment to the Master Servicer pursuant to
the terms of the applicable Non-Trust Servicing Agreement and/or Mortgage
Loan Group Intercreditor Agreement;
(iv) if the applicable Master Servicer has notice, or a
Servicing Officer of the Master Servicer has knowledge, of a material
failure of the applicable Non-Trust Master Servicer to make a remittance
that it is required to make to such applicable Master Servicer under the
terms of the related 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 Loan under the related Non-Trust Servicing Agreement, the
Trustee and the Controlling Class Representative;
(v) solely in the case of the Two Commerce Square Pooled
Mortgage Loan, as to which the Balloon Payment is due on May 9, 2013 and
the related Non-Trust Master Servicer is required by the applicable
Non-Trust Servicing Agreement to remit such Balloon Payment (if timely
received by it on May 9, 2013) to the applicable Master Servicer on May
10, 2013 pursuant to the terms of the related Non-Trust Servicing
Agreement, (A) the applicable Master Servicer shall 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 pendency of the payment of such
Balloon Payment (unless an event of default has occurred under such
Non-Trust-Serviced Pooled Mortgage Loan), (B) if the applicable Master
Servicer provides the notice described in clause (A) and it receives such
remittance on such day, it shall remit such Balloon Payment to the
Certificate Administrator (for deposit into the Distribution Account) on
May 10, 2013 (the same date as the Master Servicer Remittance Date in May
2013) and shall not make a P&I Advance in respect of such Balloon
Payment; (C) if the applicable Master Servicer fails to make such
remittance following such receipt or the applicable Master Servicer does
not provide the notice described in clause (A) above, no Event of Default
shall arise hereunder because of such failure but such Master Servicer
shall make a P&I Advance (subject to and in accordance with Section 4.03)
in an amount equal to the Assumed Monthly Payment; (D) if the Borrower
timely makes, and the applicable Non-Trust Master Servicer timely remits,
such Balloon Payment as described above but the applicable Master
Servicer fails to remit such Balloon Payment to the Certificate
Administrator, such Master Servicer shall be required, on the Master
Servicer Remittance Date occurring in June 2013, to make 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 one month's interest at the Net Mortgage Rate of the Two
Commerce Square Pooled Mortgage Loan on a principal amount equal to the
principal portion of such Balloon Payment; and
(vi) solely in the case of the Two Commerce Square Pooled
Mortgage Loan at any time when it is not a defaulted Mortgage Loan or a
Specially Serviced Mortgage Loan, to the extent that a voluntary
Principal Prepayment is made to the applicable Non-Trust Master Servicer
on the Due Date occurring in any month, such payment (and any
accompanying Prepayment Premium or Yield Maintenance Charge
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that is Received by the Trust) 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) either (i) remits such payment to the Certificate
Administrator on the Master Servicer Remittance Date, or (ii) provides
notice to the Certificate Administrator no later than 5:30 p.m. (New York
City time) on the related Master Servicer Remittance Date that such
payment has been received by the applicable Master Servicer and then
remits such payment to the Certificate Administrator by 10:00 a.m. (New
York City time) on the related Distribution Date with interest for the
account of the Certificate Administrator on such remittance at the
Reimbursement Rate from and including such Master Servicer Remittance Date
to but excluding the related Distribution Date. If the timing and notice
requirements set forth in (a) and (b) above are satisfied with respect to
such voluntary Principal Prepayment on the Two Commerce Square Pooled
Mortgage Loan, such Principal Prepayment (and such accompanying Prepayment
Premium or Yield Maintenance Charge) will be deemed to have been received
during the Collection Period ending in such month. If the timing and
notice requirements set forth in (a) and (b) above are not satisfied with
respect to such voluntary Principal Prepayment, such Principal Prepayment
(and such accompanying Prepayment Premium or Yield Maintenance Charge)
will be deemed to have been received in the next succeeding Collection
Period and, on the Master Servicer Remittance Date immediately following
such succeeding Collection Period, the applicable Master Servicer shall
make, from its own funds without reimbursement therefor, a payment of cash
to the Certificate Administrator (for deposit in the Distribution Account
and inclusion in the Available Distribution Amount) an amount equal to one
month's interest at the Net Mortgage Rate on a principal amount equal to
such Principal Prepayment.
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 applicable 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
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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
applicable Special Servicer from the Borrower under any Serviced Mortgage
Loan, and in any event within one Business Day after any such receipt, the
applicable 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 rents (if applicable) and similar
items, the applicable Master Servicer (or, if such Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the applicable 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
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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 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 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
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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
a Special Servicer from any Borrower, and in any event within one Business Day
of such receipt, such 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 Special Servicer to enable such Master
Servicer or such 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 such 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 applicable Special Servicer, the
Controlling Class Representative and (if affected) the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder. The applicable Master Servicer
shall promptly notify the Trustee, the applicable Special Servicer, the
Controlling Class Representative and (if affected) the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder 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.
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SECTION 3.04. Collection Accounts, Distribution Account, Interest
Reserve Account, Excess Liquidation Proceeds Account
and Lion Industrial Portfolio Subordinate Note
Custodial Account.
(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 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 such 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);
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(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 related 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 any Non-Trust-Serviced Pooled
Mortgage Loan or any related Non-Trust-Serviced REO Property. Furthermore, the
applicable Master Servicer for the Lion Industrial Portfolio Loan Group shall
deposit into its Collection Account, within one Business Day following receipt
thereof, all payments to the Trust made by the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder 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.
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 applicable
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 applicable 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
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Mortgage Loan, the applicable 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 applicable 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 applicable Special Servicer, each 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 each
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 applicable Special Servicer with
respect to an Administered REO Property shall be deposited by such 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 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
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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 Lion Industrial Portfolio
Non-Pooled Subordinate Loans 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 "Lion Industrial
Portfolio Subordinate Note Custodial Account"), in which the funds described
below are to be deposited and held on behalf of the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder (and which accounts may be maintained as
separately identified sub-accounts of the applicable Collection Account,
provided that for all purposes of
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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). Each
account that constitutes the Lion Industrial Portfolio Subordinate Note
Custodial Account shall be an Eligible Account. The applicable Master Servicer
shall deposit or cause to be deposited in the Lion Industrial Portfolio
Subordinate 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
Lion Industrial Portfolio Non-Pooled Subordinate Loans subsequent to the
Closing Date:
(i) all payments (from whatever source) on account of principal
of the Lion Industrial Portfolio Non-Pooled Subordinate Loans, including
Principal Prepayments;
(ii) all payments (from whatever source) on account of interest
on the Lion Industrial Portfolio Non-Pooled Subordinate Loans, including
Default Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges
received in respect of the Lion Industrial Portfolio Non-Pooled
Subordinate Loans;
(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 Lion Industrial Portfolio
Non-Pooled Subordinate Loans (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 Lion
Industrial Portfolio Subordinate Note Custodial Account;
(vi) any amounts required to be deposited by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.07(b) in connection with losses on the Lion Industrial Portfolio
Non-Pooled Subordinate 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 Lion
Industrial Portfolio Subordinate Note Custodial Account from the related
REO Account pursuant to Section 3.16(c); and
(viii) any other amounts received and applied on the Lion
Industrial Portfolio Non-Pooled Subordinate Loans pursuant to the Lion
Industrial Portfolio Intercreditor Agreement.
Notwithstanding the foregoing requirements, the applicable Master
Servicer need not deposit into the Lion Industrial Portfolio Subordinate Note
Custodial Account any amount that such Master Servicer would be authorized to
withdraw immediately from the Lion Industrial
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Portfolio Subordinate 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 Lion Industrial Portfolio
Subordinate Note Custodial Account shall be exclusive. Without limiting the
generality of the foregoing, actual payments from the Lion Industrial
Portfolio 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
Lion Industrial Portfolio Borrower that constitute Additional Master Servicing
Compensation and/or Additional Special Servicing Compensation, need not be
deposited by the applicable Master Servicer in the Lion Industrial Portfolio
Subordinate Note Custodial Account. The applicable Master Servicer shall
promptly deliver to the Lion Industrial Portfolio Special Servicer any of the
foregoing items received by it with respect to the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, if and to the extent that such items constitute
Additional Special Servicing Compensation with respect to the Lion Industrial
Portfolio Non-Pooled Subordinate Loans. If the applicable Master Servicer for
any reason deposits in the Lion Industrial Portfolio Subordinate Note
Custodial Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Lion Industrial Portfolio Subordinate
Note Custodial Account, any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and clause (viii) of the first paragraph of this Section 3.04(e), the
Lion Industrial Portfolio 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 the Lion Industrial Portfolio
Subordinate Note Custodial Account, unless the Lion Industrial Portfolio
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 Lion
Industrial Portfolio Special Servicer, such 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 such 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 Lion Industrial Portfolio Special Servicer
with respect to an REO Property relating to the Lion Industrial Portfolio Loan
Group shall be deposited by the Lion Industrial Portfolio Special Servicer
into its 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 Lion Industrial Portfolio Non-Pooled Subordinate Loans or any
successor REO Mortgage Loan with respect thereto, shall be remitted to the
applicable Master Servicer for deposit into the Lion Industrial Portfolio
Subordinate Note Custodial Account pursuant to Section 3.16(c), subject to the
Lion Industrial Portfolio Intercreditor Agreement.
(f) Funds in a Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account and/or the
Lion Industrial Portfolio Subordinate 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. The applicable
Master Servicer shall give notice to the other parties hereto and to the Lion
Industrial Portfolio Non-Pooled Subordinate
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Noteholder of the location of the Lion Industrial Portfolio Subordinate Note
Custodial Account as of the Closing Date and of the new location of the Lion
Industrial Portfolio Subordinate Note Custodial Account prior to any change
thereof. The Distribution Account, Interest Reserve Account and Excess
Liquidation Proceeds Account shall each be established at the corporate trust
headquarters of the Certificate Administrator as of the Closing Date, and the
Certificate Administrator shall give notice to the other parties hereto of the
new location of each of the Distribution Account, Interest Reserve Account and
Excess Liquidation Proceeds 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 Lion Industrial Portfolio Subordinate 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 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 applicable 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
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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 any Non-Trust-Serviced Pooled Mortgage
Loan);
(v) to reimburse the Fiscal Agent, the Trustee, the applicable
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, such 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 applicable
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 (provided that if such Nonrecoverable
Advance relates to a Mortgage Loan in the Lion Industrial Portfolio Loan
Group such payment shall be made from amounts in the Lion Industrial
Portfolio Subordinate Note Custodial Account and then from other
collections with respect to the Lion Industrial Portfolio Loan Group on
deposit in the relevant Collection Account, prior to payment from funds
in such Collection Account that are unrelated to the Lion Industrial
Portfolio Mortgage Loan Group);
(vii) to pay the Fiscal Agent, the Trustee, the applicable
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 applicable 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
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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 applicable 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;
(ix) to pay (A) any outstanding expenses that were incurred by
the applicable 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 (provided that if such expense relates to a Mortgage
Loan in the Lion Industrial Portfolio Loan Group such payment shall be
made from amounts in the Lion Industrial Portfolio Subordinate Note
Custodial Account and then from other collections with respect to the
Lion Industrial Portfolio Loan Group on deposit in the relevant
Collection Account, prior to payment from funds in such Collection
Account that are unrelated to the Lion Industrial Portfolio Loan Group);
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay the applicable 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
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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) (provided that if such cost or
expense relates to a Mortgage Loan in the Lion Industrial Portfolio Loan
Group such payment shall be made from amounts in the Lion Industrial
Portfolio Subordinate Note Custodial Account and then from other
collections with respect to the Lion Industrial Portfolio Loan Group on
deposit in the relevant Collection Account, prior to payment from funds
in such Collection Account that are unrelated to the Lion Industrial
Portfolio Loan Group);
(xiv) to pay itself, the applicable 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 (provided that if such amount
relates to a Mortgage Loan in the Lion Industrial Portfolio Loan Group
such payment shall be made from amounts in the Lion Industrial Portfolio
Subordinate Note Custodial Account and then from other collections with
respect to the Lion Industrial Portfolio Loan Group on deposit in the
relevant Collection Account, prior to payment from funds in such
Collection Account that are unrelated to the Lion Industrial Portfolio
Loan Group);
(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 applicable
Special Servicer with respect to any REO Property as to which such Master
Servicer is the applicable Master 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
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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 applicable 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 applicable Special Servicer, any
Pooled Mortgage Loan Seller, a Controlling Class Certificateholder, the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder 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 any 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 related Non-Trust Master Servicer, the related Non-Trust
Special Servicer and/or the holder of the related Non-Pooled Pari Passu
Companion Loan, 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.
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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 therefrom 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 applicable
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 applicable 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 applicable 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
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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 applicable Special Servicer
from such Master Servicer's Collection Account on each Master Servicer
Remittance Date amounts permitted to be paid to the applicable Special
Servicer therefrom based upon an Officer's Certificate received from such
Special Servicer on the first Business Day following the immediately preceding
Determination Date, describing the item and amount to which such 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.
Each Special Servicer shall keep and maintain separate accounting for each
Specially Serviced Mortgage Loan and REO Property as to which it is the
applicable Special Servicer, 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):
(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
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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 applicable 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 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
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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, a 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, 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, such 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
thereon)
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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
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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 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, either 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
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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
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
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expenses hereunder, but only if and to the extent such compensation, Advances
(with 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 Lion Industrial Portfolio Subordinate 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 Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder the amounts to which the Lion Industrial Portfolio
Non-Pooled Subordinate 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 Lion Industrial Portfolio Non-Pooled Subordinate Loans or
any successor REO Mortgage Loan with respect thereto;
(iii) to pay to the Lion Industrial Portfolio Special Servicer
earned and unpaid Special Servicing Fees in respect of the Lion
Industrial Portfolio Loan Group or any successor REO Mortgage Loans with
respect thereto;
(iv) to pay the Lion Industrial Portfolio 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 Lion
Industrial Portfolio Non-Pooled Subordinate Loans 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 Lion Industrial Portfolio 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
Lion Industrial Portfolio Pooled Mortgage Loans (or any related successor
REO Mortgage Loan with respect thereto), but which is payable out of
amounts collected on or with respect to the Lion Industrial Portfolio
Non-Pooled Subordinate Loans 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 Lion Industrial Portfolio 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 Lion Industrial Portfolio 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);
(vii) to pay itself, the Lion Industrial Portfolio 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 Mortgage Loan Group or any related REO Property;
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(viii) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the Lion Industrial Portfolio Special
Servicer any items of Additional Special Servicing Compensation, in each
case on deposit in the Lion Industrial Portfolio Subordinate Note
Custodial Account from time to time;
(ix) to pay any unpaid Liquidation Expenses incurred with
respect to the Lion Industrial Portfolio 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 Lion Industrial Portfolio 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 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
Lion Industrial Portfolio 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 Lion Industrial Portfolio 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 Lion Industrial Portfolio 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 Lion Industrial Portfolio 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 Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder under any provision of this Agreement or the Lion Industrial
Portfolio 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 the Lion Industrial Portfolio Subordinate
Note Custodial Account in error; and
(xv) to clear and terminate the Lion Industrial Portfolio
Subordinate Note Custodial Account at the termination of this Agreement
pursuant to Section 9.01 or at such time as the Lion Industrial Portfolio
Loan Group or any related REO Property is no longer serviced hereunder.
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If amounts on deposit in the Lion Industrial Portfolio Subordinate
Note Custodial Account at any particular time (after withdrawing any portion
of such amounts deposited in the Lion Industrial Portfolio Subordinate Note
Custodial Account in error) are insufficient to satisfy all payments,
reimbursements and remittances to be made therefrom as set forth in clauses
(ii) through (xiii) above, then, subject to the provisions of the Lion
Industrial Portfolio Intercreditor Agreement, any such payment, reimbursement
or remittance shall be made from the funds on deposit in the Lion Industrial
Portfolio Subordinate Note Custodial Account on a pro rata basis with any and
all other payments, reimbursements or remittances to be made from such funds;
provided that any reimbursements of Servicing Advances out of the Lion
Industrial Portfolio Subordinate Note Custodial Account, and any payments of
interest thereon out of the Lion Industrial Portfolio Subordinate 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; and third, pro rata, to the applicable Master
Servicer and the Lion Industrial Portfolio Special Servicer.
The applicable Master Servicer shall pay to the Lion Industrial
Portfolio Special Servicer from the Lion Industrial Portfolio Subordinate Note
Custodial Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Lion Industrial
Portfolio Special Servicer describing the item and amount to which the Lion
Industrial Portfolio 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 Lion Industrial Portfolio Special Servicer shall in all cases
have a right prior to the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder to any particular funds on deposit in the Lion Industrial Portfolio
Subordinate 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 the Lion
Industrial Portfolio Subordinate 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 Lion
Industrial Portfolio Subordinate Note Custodial Account and pay to the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder (in accordance with
such Person's written instructions) all amounts received on or with respect to
the Lion Industrial Portfolio Non-Pooled Subordinate Loans or any successor
REO Mortgage Loan with respect thereto that are deposited in the Lion
Industrial Portfolio Subordinate 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 next Business Day following the deposit thereof into the Lion Industrial
Portfolio Subordinate Note Custodial Account, to the extent such amounts
represent collections of Monthly Payments received from the Lion Industrial
Portfolio Borrower in the absence of a Borrower default and, otherwise, on the
Master Servicer Remittance Date immediately following the Collection Period in
which such amounts were deposited into the Lion Industrial Portfolio
Subordinate Note Custodial Account.
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SECTION 3.06. Investment of Funds in the Accounts.
(a) Each Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary institution (including the Certificate
Administrator) that holds its Collection Account, the Lion Industrial
Portfolio Subordinate Note Custodial Account (if such Master Servicer is the
applicable Master Servicer for the Lion Industrial Portfolio Loan Group) or
any Servicing Account or Reserve Account maintained by it, the applicable
Special Servicer may direct (pursuant to a standing order or otherwise) any
depositary institution (including the Certificate Administrator) that holds
the REO Account maintained by it, 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 Servicers or the Certificate Administrator, as appropriate, is such
depositary institution, such Master Servicer, such 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 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 applicable 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 Master
Servicer (with respect to Permitted Investments of amounts in its Collection
Account, the Lion Industrial Portfolio Subordinate Note Custodial Account (if
such Master Servicer is the applicable Master Servicer for the Lion Industrial
Portfolio Loan Group) or any Servicing Account or Reserve Account maintained
by it), the applicable Special Servicer (with respect to Permitted Investments
of amounts in the REO Account maintained by it), 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 applicable 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, a
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, a Special Servicer or the Certificate Administrator),
shall:
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(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, such 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 the Collection Account maintained by it and whether or not the Master
Servicer for the Lion Industrial Portfolio Loan Group directs the investment
of funds in the Lion Industrial Portfolio Subordinate Note Custodial 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 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 a
Special Servicer directs the investment of funds in the REO 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 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, a 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 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
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that maintains such Investment Account (whether it is a Master Servicer, a
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 the Lion Industrial Portfolio Subordinate Note Custodial Account,
the Lion Industrial Portfolio Non-Pooled Subordinate 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 Lion Industrial Portfolio Non-Pooled Subordinate
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, a Special
Servicer or the Certificate Administrator). This provision is in no way
intended to limit any actions that a Master Servicer, a 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 Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, the amounts so invested shall be deemed to remain on
deposit in such 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 applicable Special Servicer shall have the right,
but not the duty, to obtain, at the Trust's expense,
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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 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 applicable Special Servicer (and, in connection
therewith, the applicable Special Servicer shall be required to comply with
any
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applicable provisions of Section 3.24 or Section 3.25). The applicable Master
Servicer shall be entitled to rely on the determination of the applicable
Special Servicer made in connection with such approval or disapproval. The
applicable 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 (or, in the case of the
Lion Industrial Portfolio Loan Group, such longer period of time, if any, that
is provided in Section 3.25(a)) of the applicable 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 applicable Special
Servicer, the Trustee, the Controlling Class Representative and (if the Lion
Industrial Portfolio Loan Group is involved) the Lion Industrial Portfolio
Non-Pooled Subordinate 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.
Subject to Section 3.17(b), Section 3.24 and/or Section 3.25(a), as
applicable, with respect to each Specially Serviced Mortgage Loan and
Administered REO Property, the applicable Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain (and,
in the case of Specially Serviced Mortgage Loans, the applicable Special
Servicer shall itself maintain, subject to the right of such Special Servicer
to (x) direct the applicable Master Servicer to make a Servicing Advance for
the costs associated with coverage that such 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 applicable
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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
applicable 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 a 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 or the Lion Industrial
Portfolio Subordinate 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
applicable REO Account, 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 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
Special Servicer on behalf of the Trust (and, if applicable, the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder) to enforce any
obligations of the related Borrower under such Mortgage Loan. Costs to a
Master Servicer or Special Servicer of maintaining insurance policies pursuant
to this Section 3.07 shall 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 a 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 applicable 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 Special Servicer has
long-term unsecured debt obligations that are rated not lower than "A" by S&P
and "A" by Fitch and such Master Servicer or such 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 covered
by, the individual policies otherwise required, such Master Servicer or such
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
applicable 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
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that would have been covered by such an individual policy, promptly deposit
into the applicable Collection Account (or, to the extent the loss affects the
Lion Industrial Portfolio Non-Pooled Subordinate Loan, in the Lion Industrial
Portfolio Subordinate 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 Servicers shall each prepare
and present, on behalf of itself, the Trustee and Certificateholders and, if
applicable, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder,
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 applicable 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 applicable Special Servicer has
actual knowledge of any event giving rise to a claim under an Environmental
Insurance Policy, such 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 applicable
Special Servicer) shall be paid by, and reimbursable to, the applicable Master
Servicer as a Servicing Advance.
(d) The Master Servicers and the Special Servicers 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 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 such
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
Special Servicer are rated not lower than "BBB" by S&P and "A" by Fitch, 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.
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The Master Servicers and the Special Servicers 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 Special Servicer shall be deemed to have
complied with the foregoing provisions if an Affiliate thereof has such
insurance and, by the terms of such policy or policies, the coverage afforded
thereunder extends to such Master Servicer or such 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 a Special
Servicer are rated not lower than "BBB" by S&P and "A" by Fitch, 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, the applicable Master
Servicer (with respect to a Performing Mortgage Loan) or the applicable
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 such assignment and assumption (in
the case of a Borrower request for approval thereof) or enforce the
due-on-sale clause if the Mortgaged Property is transferred in violation of
the related Mortgage Loan Documents or (ii) if in the best economic interest
of the Trust and, if applicable, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder (as a collective whole), approve the request or waive
the effect of the due-on-sale clause; provided, however, that all of the
following conditions and/or restrictions shall apply:
(A) the applicable Master Servicer shall not approve a request
for approval of an assignment and assumption or waive the effect of a
due-on-sale clause for any Performing Serviced Mortgage Loan that is a
Pooled Mortgage Loan, unless such Master Servicer has obtained the
consent of the applicable Special Servicer (it being understood and
agreed that (1) the applicable Master Servicer shall promptly provide the
applicable Special Servicer (and, if the Lion Industrial Portfolio Loan
Group is involved, to the Lion Industrial Portfolio Controlling Party)
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 applicable Special Servicer may reasonably request in order to
withhold or grant any such consent, (2) the applicable Special Servicer
shall decide whether to withhold or grant such consent in accordance with
the Servicing Standard (and subject to Section 3.24
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and Section 3.25, as applicable) and (3) if any such consent has not been
expressly denied within seven Business Days (or, in the case of the Lion
Industrial Portfolio Loan Group, such longer period of time, if any, that
is provided in Section 3.25(a)) of the applicable 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);
(B) if 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) 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 applicable Special Servicer (with respect to a
Specially Serviced Pooled Mortgage Loan) shall approve any Borrower
request for approval of an assignment and assumption or waive the effect
of any "due-on-sale" clause 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;
(C) 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 applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall approve any
Borrower request for approval of an assignment and assumption or waive
the effect of any "due-on-sale" clause 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
applicable Special Servicer (pursuant to the approval procedures
described in clause (A) above) or (y) in the case of a Special Servicer,
it has obtained the consent of the Controlling Class Representative if
and to the extent required under Section 3.24 or the consent of the Lion
Industrial Portfolio Controlling Party if and to the extent required
under Section 3.25, as applicable);
(D) 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 applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall approve any
Borrower request for approval of an assignment and assumption or waive
the effect of any "due-on-sale" clause with respect to any Serviced
Mortgage Loan 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 Lion
Industrial Portfolio Loan Group) any expense to the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder (it being understood and
agreed that, except as expressly provided herein, neither the applicable
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Master Servicer nor the applicable Special Servicer shall be obligated to
cover or assume any such costs or expenses);
(E) neither the applicable Master Servicer (with respect to a
Performing Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall, in connection
with any approval of any Borrower request for approval of an assignment
and assumption or waiver of the effect of any "due-on-sale" clause with
respect to any Serviced Mortgage Loan, 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
(F) the applicable Special Servicer shall not consent to a
Master Servicer's recommendation described in clause (A) above, or itself
approve a request for approval of an assignment and assumption or waive
the effect of a due-on-sale clause, unless the applicable Special
Servicer has complied with Sections 3.24 or Section 3.25, as applicable.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of an assignment and assumption be conditioned on the
approval or absence of objection from the applicable Special Servicer if (a)
the assignment and assumption is permitted under the related Mortgage Loan
Documents and (b) the conditions to the assignment and assumption 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 assignment and assumption set
forth in the related Mortgage Loan Documents that do not include any other
approval or exercise).
If the provisions of any Serviced 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 Serviced Mortgage Loan) or the applicable 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 such further encumbrance (in the case of a Borrower
request for approval thereof) or enforce the due-on-encumbrance clause if the
related Mortgaged Property is encumbered in the violation of the related
Mortgage Loan Documents or (ii) if in the best economic interest of the Trust
and, if applicable, the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder (as a collective whole), approve the request or waive the effect of
the due-on-encumbrance; provided, however, that all of the following
conditions and/or restrictions shall apply:
(A) the applicable Master Servicer shall not approve a Borrower
request for approval of a further encumbrance or waive the effect of a
"due-on-encumbrance" clause with respect to any Performing Serviced
Mortgage Loan unless such Master Servicer has obtained the consent of the
applicable Special Servicer (it being
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understood and agreed that (1) the applicable Master Servicer shall
promptly provide the applicable Special Servicer (and, if the Lion
Industrial Portfolio Loan Group is involved, the Lion Industrial
Portfolio Controlling Party) with notice of any such Borrower request for
approval of such further encumbrance, the applicable Master Servicer's
recommendations and analysis, and with all information reasonably
available to the applicable Master Servicer that the applicable Special
Servicer may reasonably request in order to withhold or grant any such
consent, (2) the applicable Special Servicer shall decide whether to
withhold or grant such consent in accordance with the Servicing Standard
(and subject to Section 3.24 and Section 3.25, as applicable) and (3) if
any such consent has not been expressly denied within seven Business Days
(or, in the case of the Lion Industrial Portfolio Loan Group, such longer
period of time, if any, that is provided in Section 3.25(a)) of the
applicable 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);
(B) 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 applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall approve any
Borrower request for approval of a further encumbrance or waive the
effect of any "due-on-encumbrance" clause 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
Fitch, with respect to any Serviced Pooled Mortgage Loan that is one of
the ten largest Pooled Mortgage Loans then in the Trust Fund, by
principal balance, and from S&P, with respect to any Serviced Pooled
Mortgage Loan that (1) represents 2% or more of the then aggregate
principal balance of all of the Pooled Mortgage Loans then in the Trust
Fund, (2) is one of the ten largest Pooled Mortgage Loans then in the
Trust Fund by principal balance, (3) has an aggregate loan-to-value ratio
(including existing and proposed additional debt) that is equal to or
greater than 85% or (4) has an aggregate debt service coverage ratio
(including the debt service on the existing and proposed additional debt)
that is less than 1.2x;
(C) 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 applicable Special Servicer
(with respect to a Specially Serviced Mortgage Loan) shall approve any
Borrower request for approval of a further encumbrance or waive the
effect of any "due-on-encumbrance" clause with respect to any Serviced
Mortgage Loan 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 Lion
Industrial Portfolio Loan Group) any expense to the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder (it being understood and
agreed that neither the applicable Master Servicer nor the applicable
Special Servicer shall be obligated to cover or assume any such costs or
expenses);
(D) neither the applicable Master Servicer (with respect to a
Performing Serviced Mortgage Loan) nor the applicable Special Servicer
(with respect to
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a Specially Serviced Mortgage Loan) shall, in connection with any
approval of any Borrower request for approval of a further encumbrance or
waiver of the effect of any "due-on-encumbrance" clause with respect to
any Serviced Mortgage Loan, 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
(E) the applicable Special Servicer shall not consent to a
Master Servicer's recommendation described in clause (A) above, or itself
approve a request for approval of a further encumbrance or waive the
effect of a due-on-encumbrance clause, unless such Special Servicer has
complied with Section 3.24 or Section 3.25, as applicable.
Notwithstanding the foregoing, in no event will the applicable Master
Servicer's approval of a further encumbrance be conditioned on the approval or
absence of objection from the applicable Special Servicer if (a) the further
encumbrance is permitted under the related Mortgage Loan Documents and (b) the
conditions to the further encumbrance 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 further encumbrance set forth in the related Mortgage
Loan Documents that do not include any other approval or exercise).
In connection with any request for approval of an assignment and
assumption or waiver of a due-on-sale clause or any request for approval of a
further encumbrance of a Mortgaged Property or waiver of a due-on-encumbrance
clause, neither Master Servicer shall have any liability to the Trust Fund,
the Certificateholders, the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder or any other Person (i) with respect to the applicable Special
Servicer's approval of, disapproval of or delay in processing such request or
(ii) that may otherwise arise from any one or more of the conditions and/or
restrictions set forth in clauses (A) through (F) of the first paragraph of
this Section 3.08(a) or clauses (A) through (E) of the third paragraph of this
Section 3.08(a), as the case may be.
(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 applicable 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
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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
Certificate Principal Balance 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). 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 applicable Special Servicer shall, subject to Sections
3.09(b), 3.09(c), 3.09(d), 3.24 and 3.25, 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 applicable 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 applicable 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 applicable 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 applicable Special Servicer shall consult Independent counsel regarding
the order and manner in which the applicable Special Servicer should foreclose
upon or comparably proceed against such properties. The applicable 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
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applicable 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
applicable 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
applicable 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 applicable 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
such 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 Servicers
and the Master Servicers shall not foreclose upon or otherwise comparably
convert, including by taking title thereto, any real property or other
collateral securing any Non-Trust-Serviced Pooled Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09, no
Mortgaged Property shall be acquired by the applicable Special Servicer on
behalf of the Trust (and, in the case of the Lion Industrial Portfolio Loan
Group, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder) under
such circumstances, in such manner or pursuant to such terms 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
applicable Special Servicer shall not acquire any personal property on behalf
of the Trust (and, in the case of the Lion Industrial Portfolio Loan Group,
the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder) 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
applicable Special Servicer; or
(ii) the applicable 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.
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(c) Notwithstanding the foregoing provisions of this Section 3.09,
the applicable Special Servicer shall not, on behalf of the Trust (and, in the
case of the Lion Industrial Portfolio Loan Group, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder), 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 such 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 applicable 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 applicable
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 applicable 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 Lion Industrial Portfolio Loan
Group, to the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
(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
Lion Industrial Portfolio Loan Group, to the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder, 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 Lion
Industrial Portfolio 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.
Any such determination by a 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 Lion Industrial Portfolio Loan Group, to the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder), specifying all
of the bases for
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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 (but, if it relates to one or more Mortgage Loans in the
Lion Industrial Portfolio Loan Group, shall be paid from the Lion Industrial
Portfolio Subordinate Note Custodial Account, prior to any payment from other
amounts in the applicable Collection Account) pursuant to Section 3.05.
(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 Lion Industrial Portfolio Loan Group), the applicable 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 Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, 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, (i)
the applicable Special Servicer shall have notified the Rating Agencies, the
Controlling Class Representative, the Trustee, the applicable Master Servicer
and, if the Lion Industrial Portfolio Loan Group is involved, the Lion
Industrial Portfolio Controlling Party, in writing of its intention to so
release all or a portion of such Mortgaged Property and the basis for such
intention, (ii) unless the Lion Industrial Portfolio Loan Group is involved,
the Controlling Class Representative shall not have objected to such release
within 30 days of such notice or, if the Controlling Class Representative
shall have objected, such objection, in the applicable Special Servicer's good
faith judgment, was inconsistent with the Servicing Standard and (iii) if the
Lion Industrial Portfolio Loan Group is involved, the Lion Industrial
Portfolio Controlling Party shall not have objected to such release within 30
days of such notice or, if the Lion Industrial Portfolio Controlling Party
shall have objected, such objection, in the Lion Industrial Portfolio Special
Servicer's good faith judgment, was inconsistent with the Servicing Standard.
(e) The applicable Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative (and, in
the case of a Mortgaged Property securing the Lion Industrial Portfolio Loan
Group, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder)
monthly in writing as to any actions taken by the applicable 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 Lion Industrial Portfolio Loan Group, each of the related Serviced
Mortgage Loan's) becoming a Corrected Mortgage Loan.
(f) The applicable 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
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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 applicable 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 applicable 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 applicable Special Servicer and the
Trustee.
(h) As soon as the applicable Special Servicer (or, in the case of
any 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 (or, in the case of the Lion Industrial Portfolio Non-Pooled
Subordinate Loans or the related Mortgaged Property, the Lion Industrial
Portfolio Controlling Party) and the related calculations to be subject to the
approval of such Controlling Class Representative or Lion Industrial Portfolio
Controlling Party) 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 determination) and the
Controlling Class Representative (and, in the case of the Lion Industrial
Portfolio Non-Pooled Subordinate Loans or the related Mortgaged Property, the
Lion Industrial Portfolio Controlling Party). The applicable Special Servicer
(or, in the case of any 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), the Controlling Class Representative
and, if any Mortgage Loan in the Lion Industrial Portfolio Loan Group is
involved, the Lion Industrial Portfolio Controlling Party, no later than ten
Business Days following such Final Recovery Determination. For purposes of
making a Final Recovery Determination, with respect to any 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
related 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 the Lion Industrial Portfolio Non-Pooled Subordinate Loans, the Master
Servicer shall
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promptly so notify the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder and request delivery to it or its designee of the Lion Industrial
Portfolio Non-Pooled Subordinate Note (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
Lion Industrial Portfolio Non-Pooled Subordinate Loans, if applicable, the
Lion Industrial Portfolio Non-Pooled Subordinate 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 Lion Industrial
Portfolio Non-Pooled Subordinate Loans, in the Lion Industrial Portfolio
Subordinate Note Custodial Account, 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 Lion Industrial Portfolio Non-Pooled Subordinate Loans, if
applicable, the Lion Industrial Portfolio Non-Pooled Subordinate 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, the Lion Industrial Portfolio
Subordinate Note Custodial Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Mortgage Loan, the applicable Master Servicer or
the applicable Special Servicer shall otherwise require any Mortgage File (or
any portion thereof) or, in the case of the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, the Lion Industrial Portfolio Non-Pooled
Subordinate 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
applicable Special Servicer and receipt from such Special Servicer of a
Request for Release in the form of Exhibit C-2 attached hereto, the Trustee
or, in the case of the Lion Industrial Portfolio Non-Pooled Subordinate Loans,
if applicable, the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder, shall release, or the Trustee shall cause any related Custodian to
release, such Mortgage File (or portion thereof) or, in the case of the Lion
Industrial Portfolio Non-Pooled Subordinate Loans, the Lion Industrial
Portfolio Non-Pooled Subordinate Note, to such Master Servicer or such Special
Servicer, as the case may be, or its designee. Upon return of such Mortgage
File (or portion thereof) to the Trustee or the related Custodian and/or, in
the case of the Lion Industrial Portfolio Non-Pooled Subordinate Loans, the
Lion Industrial Portfolio Non-Pooled Subordinate Note to the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, or upon the applicable Special
Servicer's delivery to the Trustee and, in the case of the Lion Industrial
Portfolio Non-Pooled Subordinate Loans, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder, 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 and/or the Lion Industrial Portfolio Subordinate
Note Custodial Account, as applicable, 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 by the Trustee and,
in the case of the Lion Industrial Portfolio Non-Pooled Subordinate Loans, the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, to the applicable
Master Servicer or Special Servicer, as applicable.
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(c) Within five Business Days of the applicable Special Servicer's
request therefor (or, if the applicable Special Servicer notifies the Trustee
and, in the case of the Lion Industrial Portfolio Non-Pooled Subordinate
Loans, if applicable, the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder, of an exigency, within such shorter period as is reasonable under
the circumstances), the Trustee and, in the case of the Lion Industrial
Portfolio Non-Pooled Subordinate Loans, if applicable, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, shall execute and deliver to such
Special Servicer, in the form supplied to the Trustee or the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, as applicable, by such Special
Servicer, any court pleadings, requests for trustee's sale or other documents
reasonably necessary, with respect to any Serviced Mortgage Loan, to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any
legal action brought to obtain judgment against any 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 or a Special Servicer; provided
that the Trustee and, in the case of the Lion Industrial Portfolio Non-Pooled
Subordinate Loans, if applicable, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, may alternatively execute and deliver to the
applicable Special Servicer, in the form supplied to the Trustee or the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder, as applicable, by such
Special Servicer, a limited power of attorney issued in favor of such Special
Servicer and empowering such Special Servicer to execute and deliver any or
all of such pleadings or documents on behalf of the Trustee or the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder, as applicable
(however, the Trustee and, in the case of the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, shall not be liable for any misuse of such power of
attorney by such Special Servicer). Together with such pleadings or documents
(or such power of attorney empowering the applicable Special Servicer to
execute the same on behalf of the Trustee or the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder, as applicable), the applicable Special
Servicer shall deliver to the Trustee or, in the case of the Lion Industrial
Portfolio Non-Pooled Subordinate Loans, if applicable, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, an Officer's Certificate
requesting that such pleadings or documents (or such power of attorney
empowering such Special Servicer to execute the same on behalf of the Trustee
or the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, as
applicable) be executed by the Trustee or, in the case of the Lion Industrial
Portfolio Non-Pooled Subordinate Loans, if applicable, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder, and certifying as to the reason
such pleadings or documents are required and that the execution and delivery
thereof by the Trustee or the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder, as applicable (or by the applicable Special Servicer on behalf of
the Trustee or the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder, as applicable) 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.
(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
any 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 related Non-Trust Master Servicer, the related 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
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original Mortgage Note to the requesting party or its designee. In connection
with the release of the original Mortgage Note for any 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 related Non-Trust Master Servicer, the related 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
REO Mortgage Loan that was previously a Serviced Mortgage Loan, 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 March 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 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.
Furthermore, in the case of the Lion Industrial Portfolio Non-Pooled
Subordinate Loans or any REO Mortgage Loan with respect thereto (but not as to
any Replacement Pooled Mortgage Loan with respect thereto), the Master
Servicing Fee shall cease to accrue if a Liquidation Event occurs in respect
thereof. Master Servicing Fees earned with respect to any Pooled Mortgage Loan
or any REO Pooled Mortgage Loan shall be payable monthly from payments of
interest on such Pooled Mortgage Loan or REO Revenues allocable as interest on
such REO Pooled Mortgage Loan, as the case may be. The applicable Master
Servicer shall be entitled to recover unpaid Master Servicing Fees in respect
of any Pooled Mortgage Loan or any REO Pooled Mortgage Loan out of the portion
any related Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds
allocable as interest on such Pooled Mortgage Loan or REO Pooled Mortgage
Loan, as the case may be. Master Servicing Fees earned with respect to the
Lion Industrial Portfolio Non-Pooled Subordinate Loans or any successor REO
Mortgage Loan with respect thereto shall be payable out of the Lion Industrial
Portfolio Subordinate 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.
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
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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 Servicers
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, 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.
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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, which Net Default Charges accrued during the
period when such Mortgage Loan was a Performing Serviced Mortgage Loan,
any and all application 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, and any and all Net Default
Charges actually Received by the Trust with respect to any
Non-Trust-Serviced Pooled Mortgage Loan;
(ii) 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 and Yield Maintenance Charges), 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 applicable Special Servicer under the other
provisions of this Agreement and 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 and Yield Maintenance Charges), 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 applicable 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;
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(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 a Special Servicer,
such Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, each Special
Servicer shall be entitled to receive monthly the Special Servicing Fee with
respect to each Specially Serviced Mortgage Loan for which it is the
applicable Special Servicer, and each REO Mortgage Loan thereto that relates
to an Administered REO Property for which it is the applicable Special
Servicer. 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 the Lion Industrial Portfolio
Non-Pooled Subordinate Loans or any successor REO Mortgage Loan with respect
thereto, in respect of the Lion Industrial Portfolio Pooled Mortgage Loans or
REO Property) 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 the Lion Industrial Portfolio Non-Pooled Subordinate Loans or
any successor REO Mortgage Loan with respect thereto shall be payable solely
out of the proceeds of the Lion Industrial Portfolio Non-Pooled Subordinate
Loans; provided, however, that any Special Servicing Fees earned with respect
to the Lion Industrial Portfolio Pooled Mortgage Loans will be payable out of
any collections on or with respect to the Lion Industrial Portfolio Non-Pooled
Subordinate Loans and/or the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder's share of collection on any related REO Property prior to payment
out of any collections otherwise described above.
As further compensation for its activities hereunder, each Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Serviced Mortgage Loan that is a Corrected Mortgage Loan and for which such
Special Servicer is the applicable Special Servicer, 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
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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 the Lion Industrial
Portfolio Non-Pooled Subordinate Loans will be payable solely out of
collections on the Lion Industrial Portfolio Non-Pooled Subordinate Loans;
provided, however, that any Workout Fees earned with respect to the Lion
Industrial Portfolio Pooled Mortgage Loans will be payable out of any
collections on or with respect to the Lion Industrial Portfolio Non-Pooled
Subordinate Loans and/or the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder's share of collection on any related REO Property prior to payment
out of any collections otherwise described above. 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 a Special Servicer is terminated or resigns, such
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 such 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 such 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 such 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 at least one timely Monthly Payment as of
the date of such termination or resignation 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 such 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, such terminated Special
Servicer shall immediately deliver the related Servicing File to the
applicable Master Servicer, and the 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 applicable 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, each Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Serviced Mortgage Loan for which it is the applicable Special Servicer
and 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
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to each Serviced Mortgage Loan that is a Specially Serviced Mortgage Loan and
Administered REO Property for which it is the applicable Special Servicer and
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 such Special Servicer, the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder (in the case of a
Mortgage Loan in the Lion Industrial Portfolio Loan Group) or the Majority
Controlling Class Certificateholder(s) pursuant to or as contemplated by
Section 3.18 or Section 3.25, (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 a 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 any Non-Trust-Serviced Pooled Mortgage Loan or any related REO
Property (including any purchase of such Mortgage Loan by the holder of any
related Non-Pooled Pari Passu Companion Loan in accordance with the related
Mortgage Loan Group Intercreditor Agreement and the related 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) and any Liquidation Fees earned with
respect to the Lion Industrial Portfolio Non-Pooled Subordinate Loans will be
payable solely out of collections on the Lion Industrial Portfolio Non-Pooled
Subordinate Loans; provided, however, that any Liquidation Fees earned with
respect to the Lion Industrial Portfolio Pooled Mortgage Loans shall be
payable out of any collections on or with respect to the Lion Industrial
Portfolio Non-Pooled Subordinate Loans and/or the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder's share of collection on any related REO
Property prior to payment out of any collections otherwise described above.
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 such Special Servicer's responsibilities and obligations under this
Agreement and except as otherwise expressly provided herein.
(d) Each 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 for which such Special
Servicer is the applicable
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Special Servicer or any successor REO Mortgage Loan with respect thereto,
which Net Default Charges accrued during the period when such loan or
deemed loan was a Specially Serviced Mortgage Loan or an REO Mortgage
Loan; and any and all assumption fees, assumption application 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) for which such Special
Servicer is the applicable Special Servicer;
(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 and Yield Maintenance Charges), in each case to the
extent actually collected during the related Collection Period with
respect to Performing Serviced Mortgage Loans or REO Mortgage Loans for
which such Special Servicer is the applicable Special Servicer 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 such Special Servicer under
the other provisions of this Agreement; and
(iii) interest or other income earned on deposits in any REO
Account maintained by such 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 applicable Special
Servicer and shall not be required to deposit such amounts in such Master
Servicer's Collection Account or, if otherwise applicable, the Lion Industrial
Portfolio Subordinate Note Custodial Account pursuant to Section 3.04.
(e) The Master Servicers and the Special Servicers 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, the Lion Industrial Portfolio Subordinate Note
Custodial Account, or any Servicing Account, Reserve Account or REO Account,
and none of the Master Servicers or the Special Servicers 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 a Special Servicer in accordance with
Section 3.19 or otherwise, such Special Servicer shall promptly provide such
Master Servicer with such documentation regarding the subject Servicing
Advance as such Master Servicer may reasonably request.
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(f) If a Master Servicer or, as contemplated by Section 3.19, a
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 such 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 such 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 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 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 3.27, 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 (provided that such Advance
Interest on any Servicing Advances with respect to the Lion Industrial
Portfolio Loan Group or any related REO Property, to the extent not paid from
Default Charges, shall be paid from amounts in the Lion Industrial Portfolio
Subordinate Note Custodial Account, prior to payment out of any collections
otherwise described above). The applicable Master Servicer shall (subject to
the operation of Section 3.05(a)(II)) reimburse itself, the applicable 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 the Lion Industrial Portfolio
Subordinate Note Custodial Account, as applicable.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicers, the Special Servicers, 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 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
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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 applicable
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 applicable Special Servicer and the Controlling Class
Representative and, if affected, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, 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 Special Servicer
or, if appropriate, any party under the related Non-Trust Servicing Agreement
(in the case of a 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 applicable 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 related Non-Trust Servicing Agreement (in the case of a Non-Trust-Serviced
Pooled Mortgage Loan) with respect to a particular Servicing Advance for any
Mortgage Loan or REO Property. The applicable 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
applicable Special Servicer, a copy of any such Officer's Certificate (and
accompanying information) of the applicable 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 (and, if affected, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder), the applicable Special Servicer and the Master
Servicer for the subject Mortgage Loan or REO Property. 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 applicable 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
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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 applicable
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 and/or, in the case of the
Lion Industrial Portfolio Loan Group or any related REO Property, the Lion
Industrial Portfolio Subordinate Note Custodial Account, any servicing expense
that, if paid by the applicable Master Servicer or the Special Servicer, would
constitute a Nonrecoverable Servicing Advance for the subject Mortgage Loan or
REO Property; provided that (A) the applicable Master Servicer (or the
applicable 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 Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder (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 Lion Industrial Portfolio Non-Pooled Subordinate Noteholder,
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 Lion Industrial
Portfolio Loan Group, the applicable Master Servicer shall not pay such
servicing expense from such Master Servicer's Collection Account except to the
extent that amounts on deposit in the Lion Industrial Portfolio Subordinate
Note Custodial Account are insufficient for such payment; 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 affected, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder) and the applicable Special
Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the applicable Special Servicer shall also be promptly
delivered to the applicable Master Servicer and the Controlling Class
Representative (and if affected, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder).
SECTION 3.12. Property Inspections; Collection of Financial
Statements.
(a) The applicable 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 such 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 such 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
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the Mortgaged Property securing any Non-Trust-Serviced 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 (or, if affected, the Lion Industrial Portfolio Controlling
Party), 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 applicable Special Servicer has already done so during that
period pursuant to the preceding sentence. Each of the Master Servicers and
the Special Servicers 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 and the applicable Master
Servicer or Special Servicer (and, if applicable, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder), 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 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 Servicers
shall deliver to the Controlling Class Representative and, if applicable, the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder 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
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 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 quarter ended June 30,
2004, the applicable 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
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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
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder in the time and
manner set forth in Section 4.02(d). In addition, the applicable 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 applicable
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, the Controlling Class Representative and, if applicable, the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, within 30 days of
its receipt thereof.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicers and the Special Servicers 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 Master Servicer for the Lion Industrial Portfolio Loan
Group or the Lion Industrial Portfolio Special Servicer, as applicable) the
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, on or before
March 15 (except that such date shall be May 1st for every year after notice
is provided by the Certificate Administrator 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) 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 such 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 such
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 such 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).
SECTION 3.14. Reports by Independent Public Accountants.
On or before March 15 (except that such date shall be May 1 for
every year after notice is provided by the Certificate Administrator 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))
of each year, beginning in 2005, each of the Master Servicers and the Special
Servicers, 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
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Class Representative and the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder, to the effect that such firm has examined the servicing operations
of such Master Servicer or such 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 such 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 Servicers 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 the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder access to any records regarding the Mortgage Loans (or, in the case
of the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, just the
Lion Industrial Portfolio Non-Pooled Subordinate 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 the Lion Industrial Portfolio Non-Pooled Subordinate
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
Servicers 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 Servicing File for any Serviced Mortgage Loan if
the disclosure of such items is prohibited by applicable law or the provisions
of
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any related Mortgage Loan Documents or would constitute a waiver of the
attorney-client privilege.
(c) Upon the request of the Controlling Class Representative or the
Lion Industrial Portfolio Controlling Party, as applicable, made not more
frequently than once a month during the normal business hours of the Master
Servicers and the Special Servicers, each of the Master Servicers and the
Special Servicers shall, without charge, make a knowledgeable Servicing
Officer available either by telephone (with Servicing Officers of each of the
Master Servicers and Special Servicers participating simultaneously if the
Controlling Class Representative or the Lion Industrial Portfolio Controlling
Party, as applicable, so requests) or, at the option of the Controlling Class
Representative or the Lion Industrial Portfolio Controlling Party, as
applicable, if it provides reasonable advance notice, at the office of such
Servicing Officer, to verbally answer questions from the Controlling Class
Representative or the Lion Industrial Portfolio Controlling Party, as
applicable, regarding the performance and servicing of the Serviced Mortgage
Loans and/or Administered REO Properties for which such Master Servicer or
such 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 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 such 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 Servicers 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 Servicers (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 a Lion Industrial
Portfolio Mortgaged Property, also the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder), 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 applicable Special
Servicer at the expense of the Trust (or, in the case of an REO Property
related to the Lion Industrial Portfolio Loan Group, at the expense of the
Trust and the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, it
being the intention that the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder bear such expense prior to the Trust) for the purpose of taking
title to one or more REO Properties pursuant to this Agreement. Any such
limited liability company formed by such Special Servicer shall be a
manager-managed limited liability company, with such Special Servicer to serve
as the
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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 applicable 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 such 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 such 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, such Special Servicer shall act in accordance with the
Servicing Standard to liquidate the subject Administered REO Property on a
timely basis. If such Special Servicer is granted such REO Extension or
obtains such Opinion of Counsel with respect to any Administered REO Property,
such Special Servicer shall (i) promptly forward a copy of such REO Extension
or Opinion of Counsel to the Trustee, and (ii) sell 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 a 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 applicable 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 applicable 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 Lion Industrial Portfolio Loan
Group, on behalf of both the Certificateholders and the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder), 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 applicable 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 applicable 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 applicable
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
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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 applicable 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 applicable 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, each Special Servicer shall withdraw from its REO Account
and deposit into the applicable Master Servicer's Collection Account (or, to
the extent that such amounts are allocable to the REO Mortgage Loan that was
previously the Lion Industrial Portfolio Non-Pooled Subordinate Loans, into
the Lion Industrial Portfolio Subordinate Note Custodial Account), or deliver
to the applicable Master Servicer for deposit into such Collection Account
(or, to the extent that such amounts are allocable to the REO Mortgage Loan
that was previously the Lion Industrial Portfolio Non-Pooled Subordinate
Loans, into the Lion Industrial Portfolio Subordinate Note Custodial 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, in the case of each Administered REO
Property, the applicable 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. 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) Each 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 any 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 applicable 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 applicable 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 such 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 such Special Servicer may (provided that in the judgment of
such 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 (taking into account any obligation or lack thereof on
the part of the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder under the Lion Industrial Portfolio Intercreditor Agreement to
bear the effect of any such REO Tax) 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 such Special Servicer shall deliver to the Tax
Administrator and the Controlling Class Representative (and the Lion
Industrial Portfolio Controlling Party, if affected), 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 applicable Special Servicer and
shall advise such 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 such
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, such Special Servicer shall either (A) implement
the Proposed Plan (after acquiring the respective Mortgaged Property as
REO Property) or (B) manage and
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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 applicable 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
applicable Special Servicer nor the Tax Administrator shall be liable to the
Certificateholders, the Trustee, the Trust, the other parties hereto 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
applicable 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 Lion Industrial Portfolio Loan Group, on behalf of
both the Certificateholders and the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder), 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 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 applicable
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 applicable 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 applicable 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.
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To the extent that amounts on deposit in the applicable 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 such
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
such 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 applicable 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 such 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 such Special Servicer of any of its
duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) such 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 such Special Servicer shall comply with the Servicing
Standard in maintaining such Independent Contractor.
Each 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 such 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 that the revenues available from such
property, such excess costs shall be covered by, and be reimbursable as, a
Servicing Advance.
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(d) Notwithstanding anything to the contrary, this Section 3.17 shall
not apply to any REO Property related to any Non-Trust-Serviced Pooled
Mortgage Loan.
SECTION 3.18. Fair Value Option; Sale of Administered REO
Properties; Sale of the Non-Trust-Serviced Pooled
Mortgage Loans.
(a) The applicable Master Servicer, the applicable 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 the Lion Industrial Portfolio Pooled Mortgage Loans, such REO
Property and/or the beneficial interest of the Trust Fund in such REO
Property, or, in the case of any Non-Trust-Serviced Pooled Mortgage Loan, 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, (iv) in the
case of a Pooled Mortgage Loan (or REO Property related thereto) in the Lion
Industrial Portfolio Loan Group, in connection with a Mortgage Loan default as
set forth in the Lion Industrial Portfolio Intercreditor Agreement, (v) in the
case of each of the Pooled Mortgage Loans (or an REO Property related thereto)
described in Section 3.01(h), in connection with a Mortgage Loan default as
set forth in the related intercreditor agreement or (vi) in the case of a
Non-Trust-Serviced Pooled Mortgage Loan (or REO Property related thereto),
pursuant to a purchase option under the related Mortgage Loan Group
Intercreditor Agreement and/or the related Non-Trust Servicing Agreement.
(b) If any Pooled Mortgage Loan becomes a Specially Designated
Defaulted Pooled Mortgage Loan, then the applicable 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 (and, if the affected Pooled Mortgage Loan is a Lion
Industrial Portfolio Pooled Mortgage Loan, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder), in writing. In addition, the applicable
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 applicable 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 applicable 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 applicable 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 applicable
Special Servicer's reasonable judgment, materially affect, the applicable
Special Servicer's most recent Fair Value determination with respect to such
Specially Designated Defaulted Pooled Mortgage Loan, then the applicable
Special Servicer shall redetermine (in a manner as is permitted above, but
taking into account any such new circumstances or conditions known to the
applicable Special Servicer), and report to the Certificate Administrator, the
Trustee, the Controlling Class Representative and the applicable
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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
applicable Special Servicer has not accepted a bid at the Fair Value of the
Mortgage Loan, as most recently determined by the applicable Special Servicer,
prior to the expiration of 90 days from such determination, and thereafter the
applicable 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 applicable Special Servicer shall redetermine
(in the same manner as provided above, but taking into account any such new
circumstances or conditions known to the applicable 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) of the Controlling
Class), the updated Fair Value of the subject Specially Designated Defaulted
Pooled Mortgage Loan; provided, however, that the applicable 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 applicable 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 applicable
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 applicable Special Servicer shall take
account of any change in the circumstances regarding or the condition of the
related Mortgaged Property known to the applicable 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 applicable 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 applicable 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 applicable 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 applicable 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 applicable Special Servicer in
order to allow the applicable 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 any Non-Trust-Serviced Pooled Mortgage
Loan.
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(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 applicable
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 applicable 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 (provided that the parties hereto are notified in
writing of the assignment);
(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 applicable 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 applicable Special Servicer shall be entitled
to exercise such Purchase Option or to assign such Purchase Option to any
third party (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
applicable Special Servicer or its assignee within the 30-day period
following the assignment of such Purchase Option to the applicable
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
applicable Special Servicer or any Affiliate or assignee thereof, subject
to the following paragraph, the applicable Master Servicer shall confirm
and report to the Trustee, the Certificate Administrator and
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the applicable Special Servicer (or, if the applicable Master Servicer
and the applicable Special Servicer are the same Person or Affiliates,
the Trustee, upon reasonable notice, shall confirm and report to the
Certificate Administrator and the applicable Special Servicer) that the
applicable Special Servicer's determination of the Fair Value of such
Mortgage Loan is consistent with or greater than what the applicable
Master Servicer (or, if applicable, the Trustee) considers to be the Fair
Value of such Mortgage Loan; provided that the applicable Special
Servicer may, at its own expense, revise any such Fair Value
determination that is rejected by the applicable Master Servicer (or, if
applicable, 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 applicable Master Servicer or the Trustee is
required to confirm or reject the applicable Special Servicer's Fair Value
determination as contemplated by such clause (vi), either such party 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 applicable Master Servicer (or, if
applicable, the Trustee) to confirm that the applicable 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 applicable Master Servicer
or the Trustee, as the case may be, designates such a third party to make such
determination, the applicable Master Servicer or the Trustee, as applicable,
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 such Master Servicer, 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. The applicable Special Servicer shall
provide the applicable Master Servicer (or, if applicable, the Trustee) with
all information that the applicable 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 applicable 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 applicable 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 amount of the applicable Option
Price to the applicable 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 applicable Special Servicer's Fair
Value determination with respect to such Mortgage Loan in accordance with
clause (vi) of the first paragraph of this
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Section 3.18(c) and/or in accordance with the second paragraph of this Section
3.18(c).
Notwithstanding the Purchase Option provided for in this Section
3.18(c), the applicable 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 any Non-Trust-Serviced Pooled Mortgage Loan. However, in the event of the
exercise of a similar option under the related 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 applicable 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 applicable 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 applicable 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 applicable 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 applicable Special Servicer shall give the Certificate
Administrator, the Trustee, the applicable Master Servicer, the Controlling
Class Representative and, if a Lion Industrial Portfolio Mortgaged Property is
the related Administered REO Property, the Lion Industrial Portfolio
Controlling Party 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 applicable Special Servicer or, if such cash bid is from the applicable
Special Servicer, any Pooled Mortgage Loan Seller, any Certificateholder or
any Affiliate of any such Person, by the Trustee. In determining whether any
bid received from an any Pooled Mortgage Loan Seller, any Certificateholder or
any Affiliate of any such Person 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 applicable
Special Servicer, the cost of which
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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 applicable Special Servicer if neither the
applicable 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 applicable 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 applicable Special Servicer shall require that all bids be
submitted to it (or, if the applicable 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 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 applicable 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 shall
in all cases be deemed a fair price. Notwithstanding the other provisions of
this Section 3.18, no cash bid from the applicable 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 applicable Special Servicer or
any Affiliate) have been received. In the event the bid of the applicable
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 applicable Special
Servicer or any Affiliate thereof is the highest of all bids received, then
the bid of the applicable 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 applicable Special Servicer
for any Administered REO Property shall be unconditional; and, if accepted,
the subject Administered REO Property shall be transferred to the applicable
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 applicable
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 applicable Special Servicer may charge prospective bidders, and
may retain, fees that approximate the applicable 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 applicable Special Servicer was
previously reimbursed for such costs from the Collection Account, then the
applicable Special Servicer must deposit such amounts into a Collection
Account. Any sale of a Specially Designated Defaulted
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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 applicable Special
Servicer nor the Trustee shall have any liability to any Certificateholder
with respect to the purchase price therefor accepted by the applicable 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 any
Non-Trust-Serviced Pooled Mortgage Loan by, and taking any other action
necessary or appropriate in connection with the sale of a Non-Trust-Serviced
Pooled Mortgage Loan to, any purchase option holder with respect thereto
pursuant to the related 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 a Non-Trust-Serviced Pooled
Mortgage Loan pursuant to the related 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 related Non-Trust Servicing Agreement and/or
the related Mortgage Loan Group Intercreditor Agreement, none of the
applicable Master Servicer, the applicable Special Servicer or the Trustee
shall have any liability to any Certificateholder with respect to the purchase
price for such Non-Trust-Serviced Pooled Mortgage Loan accepted on behalf of
the Trust.
(i) If any Specially Designated Defaulted Pooled Mortgage Loan or
Administered REO Property is sold under this Section 3.18, or a
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 related 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 applicable 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) Any purchaser of a Lion Industrial Portfolio Pooled Mortgage Loan
hereunder, whether pursuant to this Section 3.18 or pursuant to Section 2.03
or 9.01, will be subject to the Lion Industrial Portfolio Intercreditor
Agreement, including any requirements thereof governing who may be a holder of
such Pooled Mortgage Loan. The Lion Industrial Portfolio Special Servicer will
require, in connection with such a sale of a Lion Industrial Portfolio Pooled
Mortgage Loan, that the purchaser assume in writing all of the rights and
obligations of the holder of such Pooled Mortgage Loan under the Lion
Industrial Portfolio Intercreditor Agreement.
(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
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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 applicable 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, (v) alternatively but solely in the case of a
Specially Designated Defaulted Pooled Mortgage Loan that is part of the Lion
Industrial Portfolio Loan Group, the purchase option granted to the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder under the Lion
Industrial Portfolio Intercreditor Agreement is exercised or (vi) such
Specially Designated Defaulted Pooled Mortgage Loan has otherwise been removed
from the Trust.
SECTION 3.19. Additional Obligations of Master Servicers and
Special Servicers.
(a) Within sixty (60) days (or within such longer period as the
applicable 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 applicable 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 applicable Special
Servicer has no knowledge of changed circumstances that in the applicable
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 applicable
Special Servicer when the Appraisal is received by the applicable Special
Servicer. Promptly following the receipt of, and based upon, such Appraisal,
the applicable Special Servicer, in consultation with the Controlling Class
Representative (or, in the case of a Mortgage Loan in the Lion Industrial
Portfolio Loan Group, in consultation with the Lion Industrial Portfolio
Controlling Party), 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 applicable Special Servicer. In the case of a Lion
Industrial Portfolio Mortgaged Property, the Lion Industrial Portfolio Special
Servicer shall also determine and report to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder the Appraisal Reduction Amount, if
any,
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with respect to the entire Lion Industrial Portfolio Loan Group (calculated as
if it was a single Serviced Pooled Mortgage Loan).
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 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 applicable 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
applicable 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 applicable Special Servicer when
the Appraisal is received by the applicable Special Servicer. Promptly
following the receipt of, and based upon, such update, the applicable Special
Servicer shall redetermine, in consultation with the Controlling Class
Representative (or, in the case of the Lion Industrial Portfolio Loan Group at
any time when a Lion Industrial Portfolio Change of Control Event does not
exist, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder), 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 a Lion Industrial Portfolio Mortgaged
Property, the Lion Industrial Portfolio Special Servicer shall also
redetermine, and report to the Trustee, the applicable Master Servicer, the
Controlling Class Representative and the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, the Appraisal Reduction Amount, if any, with respect
to the entire Lion Industrial Portfolio Loan Group (calculated as if it was a
single Serviced Pooled Mortgage Loan).
The Controlling Class Representative and, insofar as the Lion
Industrial Portfolio Non-Pooled Subordinate Loans is affected, the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder, each shall have the
right at any time, but not more frequently that once in any six month period,
to require that the applicable Special Servicer obtain a new Appraisal of the
subject Mortgaged Property in accordance with MAI standards, at the expense of
the Controlling Class Certificateholders or the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder, as applicable. With respect to a Lion
Industrial Portfolio Mortgaged Property, to the extent set forth in the Lion
Industrial Portfolio Loan Group Intercreditor Agreement, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder shall have the right at any time
when a Lion Industrial Portfolio Change of Control Event does not exist, to
require that the Lion Industrial Portfolio Special Servicer obtain a new
Appraisal of such Lion Industrial Portfolio Mortgaged Property in accordance
with MAI standards, at the expense of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder. Upon receipt of such Appraisal, the applicable Special
Servicer shall deliver a copy thereof to the Trustee, the applicable Master
Servicer, the Controlling Class Representative and, in the case of a Lion
Industrial Portfolio Mortgaged Property, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. Promptly following the receipt of, and
based upon, such Appraisal, the applicable 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
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Loan. In the case of the Lion Industrial Portfolio Mortgaged Properties, the
Lion Industrial Portfolio Special Servicer shall also redetermine and report
to the Trustee, the applicable Master Servicer, the Controlling Class
Representative and the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder the Appraisal Reduction Amount, if any, with respect to the entire
Lion Industrial Portfolio Loan Group (calculated as if it was a single
Serviced Pooled Mortgage Loan).
(b) Notwithstanding anything to the contrary contained in any other
Section of this Agreement, the applicable 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 make such Servicing Advance;
provided that the applicable 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 Business Days (and, to the extent reasonably
practicable, at least ten 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
applicable 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 applicable 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 applicable 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 applicable Special
Servicer for, or to make at the direction of the applicable 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. Such Master Servicer shall notify the
applicable Special Servicer in writing of such determination and, if
applicable, such Nonrecoverable Servicing Advance shall be reimbursed to the
applicable 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
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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 (including, in the case of the Lion
Industrial Portfolio Loan Group, the terms thereof that entitle the related
Borrower to consummate a partial defeasance of a principal amount which is
other than 125% of the allocated loan amount as described in clause (vi) of
this subsection (d)), 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,
if the Lion Industrial Portfolio Loan Group is involved, the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder and, so long as such a requirement
would not violate applicable law or the Servicing Standard, obtain a
confirmation that such defeasance will not result in an Adverse Rating Event.
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
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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 Servicer or the
applicable 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 applicable 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 3.25, 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 applicable Special
Servicer (it being understood and agreed that (A) the applicable Master
Servicer shall promptly provide the applicable 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 applicable Special Servicer may reasonably request in
order to withhold or grant any such consent, (B) the applicable Special
Servicer shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard (and subject to Sections 3.24 and
3.25) and (C) if any such consent has not been expressly denied within
ten Business Days of the applicable Special Servicer's receipt from the
applicable Master Servicer of such Master Servicer's recommendations and
analysis and all information reasonably requested
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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);
(ii) other than as provided in Sections 3.02, 3.08, 3.20(e) and
3.20(f), the applicable 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 timing of any
related payment of principal, interest or other amount payable thereunder
or, in the reasonable judgment of the applicable 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 applicable 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 Lion Industrial Portfolio Loan Group, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder), 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
Lion Industrial Portfolio Loan Group, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder to be done at the related Net Mortgage
Rate), than would liquidation; provided that: (A) any modification,
extension, waiver or amendment of the payment terms of the Lion
Industrial Portfolio Loan Group shall be structured 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, such that neither the Trust as holder of
the Lion Industrial Portfolio Pooled Mortgage Loans nor the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder shall gain a
priority over the other with respect to any payment, which priority is
not, as of the date of the related Mortgage Loan Group Intercreditor
Agreement, reflected in the related Mortgage Loan Documents, including
the related Mortgage Loan Group Intercreditor Agreement, and (B) to the
extent consistent with the Servicing Standard (taking into account the
extent to which the Lion Industrial Portfolio Non-Pooled Subordinate
Loans are junior to the Lion Industrial Portfolio Pooled Mortgage Loans),
(I) no waiver, reduction or deferral of any particular amounts due on the
Lion Industrial Portfolio Pooled Mortgage Loans shall be effected prior
to the waiver, reduction or deferral of the entire corresponding item in
respect of the Lion Industrial Portfolio Non-Pooled Subordinate Loans,
and (II) no reduction of the Mortgage Rate of the Lion Industrial
Portfolio Pooled Mortgage Loans shall be effected prior to the reduction
of the Mortgage Rate of the Lion Industrial Portfolio Non-Pooled
Subordinate Loans;
(iii) the applicable 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
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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 applicable Special Servicer shall have first determined in
its reasonable judgment, based upon a Phase I Environmental Assessment
(and any additional environmental testing that the applicable 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 applicable
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 applicable 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 applicable 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 applicable 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 applicable 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 applicable Special
Servicer deems necessary and prudent) conducted by an Independent Person
who regularly 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 that such
addition or substitution of collateral will not, in and of itself, result
in an Adverse Rating Event with respect to any Class of Rated
Certificates (except that such confirmations will not be a condition to
the addition or substitution of real estate
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collateral for the Lion Industrial Portfolio Loan Group in accordance
with the terms of the related Mortgage Loan Documents); and
(vii) the applicable 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 applicable 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 remaining Mortgaged
Property (together with any substitute collateral) is, in the reasonable
judgment of the applicable Special Servicer, adequate security for the
remaining Mortgage Loan 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 (as confirmed in writing to the Trustee by each 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 applicable 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; and provided, further, that, in connection with the Lion Industrial
Portfolio Loan Group prior to the date, if any, on which the related Mortgage
Loans become Specially Serviced Mortgage Loans, the applicable Master Servicer
shall be required to comply in all respects with the instructions of the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder (whether or not it
constitutes the Lion Industrial Portfolio Controlling Party), without regard
to clauses (i) through (vii) above, with respect to property releases or
property substitutions of the related Mortgaged Properties permitted under the
related Mortgage Loan Documents.
(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
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actually be capitalized; provided, however, that this sentence shall not limit
the rights of the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Pooled Mortgage Loan.
(c) Each of the applicable Master Servicer and the applicable 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 such 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 applicable 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 applicable Special Servicer is required under Section
3.02), and all material consents, shall be in writing. Each of the applicable
Special Servicer and the applicable Master Servicer shall notify the other
such party, each Rating Agency, the Certificate Administrator, the Trustee,
the Controlling Class Representative and, if affected thereby, the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder, 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 applicable
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 and, if affected,
the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder), 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 applicable
Special Servicer or the applicable Master Servicer, as appropriate, pursuant
to Section 3.20(a) above, the applicable Special Servicer or the applicable
Master Servicer, as applicable, shall deliver to the other such party, the
Certificate Administrator, the Trustee, the Rating Agencies and, if affected,
the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder an Officer's
Certificate certifying that all of the requirements of Section 3.20(a) have
been met and, in the case of the applicable 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 applicable Special
Servicer (which consent shall be deemed
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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,
Section 3.24 or Section 3.25 to the contrary, the applicable Master Servicer
shall not be required to seek the consent of, or provide prior notice to, the
applicable Special Servicer, any Certificateholder or (in the case of any
Mortgage Loan in the Lion Industrial Portfolio Loan Group) the Lion Industrial
Portfolio Controlling Party 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 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 30% of the net rentable area of the
Mortgaged Property or 30,000 square feet of the Mortgaged Property, whichever
is greater; (v) approval of annual budgets to operate the Mortgage 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 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)
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would be consistent with the Servicing Standard; and provided, further, that,
in connection with the Lion Industrial Portfolio Loan Group prior to the date,
if any, on which the related Mortgage Loans become Specially Serviced Mortgage
Loans, the applicable Master Servicer shall be required to comply in all
respects with the instructions of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder (whether or not it constitutes the Lion Industrial
Portfolio Controlling Party), without regard to the foregoing provisions, with
respect to property releases or property substitutions of the related
Mortgaged Properties permitted under the related Mortgage Loan Documents;
provided, further, that, notwithstanding any provision hereof to the contrary,
in connection with the Lion Industrial Portfolio Loan Group, neither the
applicable Master Servicer nor the applicable Special Servicer shall in any
event approve a change of the property manager for a Lion Industrial Portfolio
Mortgaged Property at the request of the related Borrower unless both (I) S&P
has confirmed in writing the absence of an Adverse Rating Event as to S&P if
(x) the replacement property manager is not one of the five current property
managers that manage one or more of the Lion Industrial Portfolio Mortgaged
Properties or (y) the Lion Industrial Portfolio Mortgaged Property or
Properties to be managed by a replacement property manager have a combined
allocated loan amount of equal to or greater than $20,000,000 and (II) the
replacement property manager either (A)(i) is one of the five current property
managers that manage one or more of the Lion Industrial Portfolio Mortgaged
Properties and (ii) is not the subject of a bankruptcy or similar insolvency
proceeding; or (B)(i) is a reputable management company having at least five
(5) years' experience in the management of commercial properties with similar
uses as the relevant Lion Industrial Portfolio Mortgaged Property and in the
jurisdiction in which the relevant Lion Industrial Portfolio Mortgaged
Property is located, (ii) has, for at least five (5) years prior to its
engagement as property manager, managed at least (5) properties of the same
property type as the relevant Lion Industrial Portfolio Mortgaged Property,
(iii) at the time of its engagement as property manager, has leasable square
footage of the same property type as the relevant Lion Industrial Portfolio
Mortgaged Property equal to the lesser of (A) 1,000,000 leasable square feet
and (B) five (5) times the leasable square feet of the relevant Lion
Industrial Portfolio Mortgaged Property and (iv) is not the subject of a
bankruptcy or similar insolvency proceeding.
(g) In connection with granting an extension of the maturity date of
any Mortgage Loan in the Lion Industrial Portfolio Loan Group in accordance
with Section 3.20(a), the Lion Industrial Portfolio Special Servicer (if the
Mortgage Loans in the Lion Industrial Portfolio Loan Group are Specially
Serviced Mortgage Loans), or the applicable Master Servicer (if the Mortgage
Loans in the Lion Industrial Portfolio Loan Group are not Specially Serviced
Mortgage Loans) shall cause the related Borrower to agree, if it has not
already done so pursuant to the existing Mortgage Loan Documents, to
thereafter deliver to the Lion Industrial Portfolio Special Servicer, the
Trustee, the Controlling Class Representative and the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder audited operating statements on a
quarterly basis with respect to the related Mortgaged Properties, provided
that the Lion Industrial Portfolio Special Servicer or the applicable Master
Servicer, as the case may be, may, in its sole discretion, waive the
requirement that such statements be audited.
(h) If and to the extent that the Trust, as holder of any
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
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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 (other than a Lion Industrial
Portfolio Pooled 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.
(i) 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 Applicable 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 Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder), and if the applicable Master Servicer is not also the
applicable Special Servicer, the applicable Master Servicer shall immediately
give notice thereof to the applicable Special Servicer and the Trustee, and
shall deliver the related Servicing File to the applicable Special Servicer
and shall use its best reasonable efforts to provide the applicable 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
applicable Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. To the extent such
is in the possession of the applicable Master Servicer (or any Sub-Servicer
thereof), the information, documents and records to be delivered by the
applicable Master Servicer to the applicable 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 Statements and tenant estoppels. The applicable Master
Servicer shall use its best efforts to comply with the preceding two sentences
within five 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 applicable
Special Servicer, it 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
applicable Special Servicer, the applicable 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 Lion
Industrial Portfolio Non-Pooled Subordinate 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 applicable Special
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Servicer's obligation to service such Mortgage Loan, and the applicable
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 applicable 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
applicable 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 applicable
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 applicable 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 applicable Special Servicer shall be
entitled to rely upon written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) Each Master Servicer and the applicable 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 applicable 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
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be, under such agreement or, subject to the provisions of Section 3.22(f),
terminate such rights and obligations without payment of any fee (provided,
however, that the Lion Industrial Portfolio Sub-Servicing Agreement shall not
be terminated except for cause or at the direction of the Lion Industrial
Portfolio Controlling Party); (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
applicable Special Servicer with respect to any Specially Serviced Mortgage
Loan or otherwise; (v) provides that the Trustee, for the benefit of the
Certificateholders (and, in the case of a Subservicing Agreement related to
the Lion Industrial Portfolio Loan Group, for the benefit of the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder), 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
such 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 (or, in the
case of a Subservicing Agreement related to the Lion Industrial Portfolio Loan
Group, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder) 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 such Special Servicer, as the case may be, pursuant to Section
6.03; (viii) does not impose any liability or indemnification obligation
whatsoever on the Trustee or the Certificateholders with respect to anything
contained therein; and (ix) in the case of the Lion Industrial Portfolio
Sub-Servicing Agreement, provides that such Sub-Servicing Agreement may be
terminated, without cause and without payment of any penalty or termination
fee, only at the direction of the Lion Industrial Portfolio Controlling Party;
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.
(b) References in this Agreement to actions taken or to be taken by a
Master Servicer or Special Servicer include actions taken or to be taken by a
Sub-Servicer on behalf of such Master Servicer or such Special Servicer, as
the case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of a Master Servicer or Special
Servicer hereunder to make Advances shall be deemed to have been advanced by
such Master Servicer or such Special Servicer, as the case may be, out of its
own funds and, accordingly, such Advances shall be recoverable by such
Sub-Servicer through such Master Servicer in the same manner and out of the
same funds as if such Sub-Servicer were such Master Servicer or such 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 such Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the
Master Servicers and the Special Servicers shall each
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be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment.
(c) The Master Servicers and the Special Servicers 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 (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 Servicers, for the
benefit of the Trustee and the Certificateholders (and, in the case of a
Subservicing Agreement related to the Lion Industrial Portfolio Loan Group,
for the benefit of the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder), 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. Such enforcement, including the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as such Master Servicer or such
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, including any provisions thereof limiting the
ability of a Master Servicer or Special Servicer, as applicable, to terminate
a Sub-Servicer, each of the Master Servicers and the Special Servicers shall
have the right to remove a Sub-Servicer retained by it 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 Lion Industrial Portfolio Loan
Group, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder), as
applicable, subject to, in the case of a Sub-Servicer for the Lion Industrial
Portfolio Loan Group, the approval of the Lion Industrial Portfolio
Controlling Party if such approval is required under Section 3.25.
(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 a Special Servicer under any Sub-Servicing
Agreement, such Master Servicer or such 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 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 to the assuming party.
(h) Notwithstanding any Sub-Servicing Agreement entered into by it,
the Master Servicers and the Special Servicers shall each remain obligated and
liable to the Trustee and the Certificateholders (and, in the case of the Lion
Industrial Portfolio Loan Group, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder) 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 Servicers shall each
pay the fees of any Sub-Servicer retained by it in accordance with the
respective Sub-Servicing Agreement and, in any event, from its own funds.
(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 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 a
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 such 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 a Special Servicer to be reimbursed for any cost or expense
for which it is otherwise entitled to reimbursement under this Agreement.
(k) Neither the applicable Master Servicer nor the Lion Industrial
Portfolio Special Servicer shall enter into any Sub-Servicing Agreement with
respect to the Lion Industrial Portfolio Loan Group without the consent of the
Lion Industrial Portfolio Controlling Party. In addition, the Lion Industrial
Portfolio Controlling Party may require the applicable Master Servicer or the
applicable Special Servicer to terminate any particular Sub-Servicing
Agreement with respect to the Lion Industrial Portfolio Loan Group.
Furthermore, if PAR is no longer a Master Servicer, then the Lion Industrial
Portfolio Controlling Party may require the applicable Master Servicer to (A)
appoint a Sub-Servicer (acceptable to the Lion Industrial Portfolio
Controlling Party in its sole discretion) with respect to the Lion Industrial
Portfolio Loan Group and (B) delegate all of its primary servicing
responsibilities and duties, and assign all of the corresponding master
servicing compensation (exclusive of a portion of the corresponding Master
Servicing Fee that is in excess of a reasonable primary servicing fee), with
respect to the Lion Industrial Portfolio Loan Group to that Sub-Servicer.
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(l) The General Special Servicer shall not enter into any
Sub-Servicing Agreement unless the Controlling Class Representative has
consented thereto.
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 REIT, Inc. of the
Certificates of the Controlling Class, ARCap 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 and otherwise
promptly upon request from a Master Servicer or a Special Servicer, the
Certificate Administrator shall deliver to each of the Trustee, the Master
Servicers and the Special Servicers the identity of the Controlling Class
Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
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. 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 Servicers shall each be entitled to rely on
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such information provided by the Certificate Administrator with respect to any
obligation or right hereunder that such Master Servicer or such 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, each
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, each 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 General
Special Servicer, whereupon (if a 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 General
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 a 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 General 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.
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SECTION 3.24. Certain Rights and Powers of the Controlling Class
Representative.
(a) Subject to Section 3.24(c), the applicable 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
applicable Special Servicer. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) a summary of the status of such Specially Serviced Mortgage
Loan and any negotiations with the related Borrower;
(ii) a discussion of the legal and environmental considerations
reasonably known to the applicable 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 applicable Special Servicer's recommended
action with respect to such Specially Serviced Mortgage Loan;
(v) the Appraised Value of the related Mortgaged Property or
Mortgaged Properties, together with the assumptions used in the
calculation thereof (which the applicable Special Servicer may satisfy by
providing a copy of the most recently obtained Appraisal); and
(vi) such other information as the applicable Special Servicer
deems relevant in light of the Servicing Standard.
If (i) the 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 applicable 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, the Lion Industrial
Portfolio Controlling Party), all as a collective whole, the applicable
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 applicable 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, the Lion
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Industrial Portfolio Controlling Party), all as a collective whole, then
(subject to Section 3.24(c)) the applicable 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 applicable 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 applicable Special Servicer
shall implement the recommended action as outlined in the most recent version
of such Asset Status Report (provided that the applicable Special Servicer
shall not take any action that is contrary to applicable law or the terms of
the applicable Mortgage Loan Documents). The applicable 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 applicable 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 applicable Special Servicer
has reasonably determined that failure to take such action would materially
and adversely affect the interests of the Certificateholders, as a collective
whole, and (B) it has made a reasonable effort to contact the Controlling
Class Representative. The applicable Special Servicer may not take any action
inconsistent with an Asset Status Report that has been adopted as provided
above, unless such action would be required in order to act in accordance with
the Servicing Standard. If the Special Servicer takes any action inconsistent
with an Asset Status Report that has been adopted as provided above, the
applicable Special Servicer shall promptly notify the Controlling Class
Representative of such inconsistent action and provide a reasonably detailed
explanation of the reasons therefor.
The applicable 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 applicable
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 applicable 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 applicable Special
Servicer has notified the Controlling Class Representative in writing of the
applicable 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
applicable Special Servicer, within such shorter period during which the
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applicable 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 applicable Special Servicer but the
applicable 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 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 applicable
Special Servicer but the applicable 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);
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(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 applicable Special Servicer but the
applicable 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 applicable Special Servicer but the
applicable 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);
(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 applicable Special Servicer but the
applicable 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
applicable Special Servicer but the applicable 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 applicable Special Servicer determines
that immediate action
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is necessary to protect the interests of the Certificateholders (as a
collective whole), the applicable 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 applicable 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 Properties or as to
which provision is otherwise made herein. Upon reasonable request, the
applicable Special Servicer shall provide the Controlling Class Representative
with any information in the applicable 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) neither
Special Servicer shall 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 applicable Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that such Special Servicer has determined, in its reasonable, good
faith judgment, would): (A) require or cause such Special Servicer to violate
applicable law, the terms of any Mortgage Loan or any other Section of this
Agreement, including the applicable Special Servicer's obligation to act in
accordance with the Servicing Standard, (B) result in an Adverse REMIC Event
with respect to any REMIC Pool or an Adverse Grantor Trust Event with respect
to either Grantor Trust Pool, (C) expose the Trust, the Depositor, a Master
Servicer, a 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.
(e) Notwithstanding anything to the contrary contained in this
Agreement, including other subsections of this Section 3.24, with respect to
the Lion Industrial Portfolio Loan Group, the Controlling Class Representative
shall not have any of the rights set forth in this Section 3.24 unless the
Controlling Class Representative becomes the Lion Industrial Portfolio
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Controlling Party and will not, regardless of whether the Controlling Class
Representative becomes the Lion Industrial Portfolio Controlling Party, at any
time have the right to make decisions or direct the Lion Industrial Portfolio
Special Servicer with respect to property releases or property substitutions
of the related Mortgaged Properties permitted under the related Mortgage Loan
Documents.
SECTION 3.25. Certain Rights and Powers of the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder and the
Lion Industrial Portfolio Controlling Party.
(a) Notwithstanding anything in any other Section of this Agreement
to the contrary, but in all cases subject to Section 3.25(b), the applicable
Master Servicer and the Lion Industrial Portfolio Special Servicer will each
be required to obtain the prior written consent, or the deemed consent, in
accordance with the Lion Industrial Portfolio Intercreditor Agreement, of the
Lion Industrial Portfolio Controlling Party prior to taking any of the
following actions:
(i) any proposed foreclosure upon or comparable conversion
(which may include acquisition as an REO Property) of the ownership of
any Lion Industrial Portfolio Mortgaged Property and the other collateral
securing the Lion Industrial Portfolio Loan Group if it comes into and
continues in default or other enforcement action under the related
Mortgage Loan Documents;
(ii) any proposed modification, amendment or waiver of a
monetary term (including, without limitation, the timing of payments or
forgiveness of interest or principal, but excluding any term relating to
late charges) or any material non-monetary term of the Lion Industrial
Portfolio Loan Group;
(iii) any proposed successor property manager with respect to,
or any material alteration of, any of the Lion Industrial Portfolio
Mortgaged Properties;
(iv) any waiver of the requirements under the Lion Industrial
Portfolio Loan Group with respect to property insurers or the manner in
which payments or other collections on the Lion Industrial Portfolio Loan
Group are held and/or invested;
(v) any proposed sale of any of the Lion Industrial Portfolio
Mortgaged Properties or transfer of an interest in the related Borrower
or any of the Lion Industrial Portfolio Mortgaged Properties;
(vi) any acceptance of a discounted payoff of the Lion
Industrial Portfolio Loan Group;
(vii) any determination to bring any Lion Industrial Portfolio
Mortgaged Property into compliance with applicable environmental laws or
to otherwise address hazardous materials located at a Lion Industrial
Portfolio Mortgaged Property;
(viii) any material release of collateral for the Lion
Industrial Portfolio Loan Group (other than in accordance with the terms
of, or upon satisfaction of, the Lion Industrial Portfolio Loan Group) or
any release of the related Borrower or any guarantor;
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(ix) any acceptance of substitute or additional collateral for
the Lion Industrial Portfolio Loan Group (other than in accordance with
the terms of the Lion Industrial Portfolio Loan Group);
(x) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause;
(xi) any acceptance of an assumption agreement releasing the
related Borrower from liability under the Lion Industrial Portfolio Loan
Group;
(xii) the appointment or removal of any sub-servicer for the
Lion Industrial Portfolio Loan Group (other than in connection with the
Trustee becoming the successor thereto pursuant to the terms of Section
7.02 of this Agreement);
(xiii) any renewal or replacement of the then existing insurance
policies with respect to the Lion Industrial Portfolio Loan Group to the
extent that such renewal or replacement policy does not comply with the
terms of the related Mortgage Loan Documents or any waiver, modification
or amendment of any insurance requirements under the loan documents, in
each case if the mortgagee's approval is required under the related
Mortgage Loan Documents;
(xiv) the approval of a material capital expenditure, if the
mortgagee's approval is required under the related Mortgage Loan
Documents;
(xv) the approval of additional indebtedness secured by the Lion
Industrial Portfolio Mortgaged Property, if the mortgagee's approval is
required under the related Mortgage Loan Documents; and
(xvi) any adoption or approval of a plan in bankruptcy of the
related Borrower;
provided that (A) in the event that the applicable Master Servicer or the Lion
Industrial Portfolio Special Servicer determines in accordance with the
Servicing Standard that immediate action is necessary to protect the interests
of the Trustee, the Certificateholders and the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder (as a collective whole), the applicable
Master Servicer or the Lion Industrial Portfolio Special Servicer may take any
such action without waiting for the Lion Industrial Portfolio Controlling
Party's response; (B) the applicable Master Servicer or the Lion Industrial
Portfolio Special Servicer, as applicable, will not be obligated to seek
approval from the Lion Industrial Portfolio Controlling Party for any actions
to be taken by it if: (i) the applicable Master Servicer or the Lion
Industrial Portfolio Special Servicer, as applicable, notified the Lion
Industrial Portfolio Controlling Party in writing of such actions that the
applicable Master Servicer or the Lion Industrial Portfolio Special Servicer,
as applicable, proposes to take with respect to the workout or liquidation of
the Lion Industrial Portfolio Loan Group, and (ii) for 60 days following the
first such notice, the Lion Industrial Portfolio Controlling Party has
objected to all of those proposed actions and has failed to suggest any
alternative actions that the applicable Master Servicer or the Lion Industrial
Portfolio Special Servicer considers to be consistent with the Servicing
Standard; and (C) regardless of the identity of the Lion Industrial Portfolio
Controlling Party, the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder shall have the exclusive right to make decisions and direct the
applicable
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Master Servicer or the Lion Industrial Portfolio Special Servicer with respect
to any property releases and property substitutions permitted under the
related Mortgage Loan Documents in connection with the Lion Industrial
Portfolio Loan Group.
In addition, notwithstanding any provision to the contrary contained
in this Agreement, for so long as the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder is the Lion Industrial Portfolio Controlling Party, the
Lion Industrial Portfolio Controlling Party may communicate with, respond to
requests from and deliver any proposals to the related Borrower with respect
to the items set forth above in respect of the Lion Industrial Portfolio Loan
Group, the Lion Industrial Portfolio Mortgaged Properties and the related
Borrower and may forward copies of such communications or proposals to the
applicable Master Servicer and the Lion Industrial Portfolio Special Servicer
for their consideration. The applicable Master Servicer or the Lion Industrial
Portfolio Special Servicer, as the case may be, shall follow the
recommendations of the Lion Industrial Portfolio Controlling Party with
respect to such items, unless the applicable Master Servicer or the Lion
Industrial Portfolio Special Servicer, as the case may be, determines that
following such recommendations would violate the Servicing Standard. For as
long as the initial Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder or any of its Affiliates is the Lion Industrial Portfolio
Controlling Party, then such Lion Industrial Portfolio Controlling Party may
exercise any and all of the rights enumerated above in this subsection (a),
provided that, if a Servicing Transfer Event has occurred and is continuing,
the Lion Industrial Portfolio Special Servicer shall be required to fully
participate in the exercise of such rights enumerated above in this subsection
(a), including, without limitation, participating in any communications with
the related Borrower.
Upon reasonable request, the applicable Master Servicer or the Lion
Industrial Portfolio Special Servicer shall provide the Lion Industrial
Portfolio Controlling Party with any information in the possession of the
applicable Master Servicer or the Lion Industrial Portfolio Special Servicer
with respect to such matters, including, without limitation, its reasons for
determining to take a proposed action.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Lion Industrial Portfolio Controlling
Party, as contemplated by Section 3.25(a) or any other provision of this
Agreement, may (and the applicable Master Servicer or the Lion Industrial
Portfolio Special Servicer, as the case may be, shall ignore and act without
regard to any such advice, direction or objection that such Master Servicer or
the Lion Industrial Portfolio Special Servicer, as the case may be, has
determined, in its reasonable, good faith judgment, would): (A) require or
cause such Master Servicer or the Lion Industrial Portfolio Special Servicer,
as the case may be, to violate applicable law, any provision of this
Agreement, or the Lion Industrial Portfolio Intercreditor Agreement, including
such Master Servicer's or the Lion Industrial Portfolio Special Servicer's, as
applicable, obligation to act in accordance with the Servicing Standard, or
act in a manner that is not in the best interests of the holders of the Lion
Industrial Portfolio Loan Group (as a collective whole), (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 or cause the arrangement
evidenced by the Lion Industrial Portfolio Intercreditor Agreement not to be
treated as a "grantor trust" for Federal income tax purposes or (C) expand the
scope of the applicable Master Servicer's or the Lion Industrial Portfolio
Special Servicer's, as the case may be, responsibilities under this Agreement.
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(c) Each Certificateholder acknowledges and agrees, by its acceptance
of its Certificates, that: (i) the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder may have special relationships and interests that
conflict with those of Holders of one or more Classes of Certificates; (ii)
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder may act solely in
its own interests; (iii) the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder does not have any duties to the Holders of any Class of
Certificates; and (iv) the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder or any director, officer,
employee, agent or principal thereof for having so acted.
(d) Any Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
or its designee (other than the Lion Industrial Portfolio Controlling Party)
shall be entitled to receive a copy of any notice or report required to be
delivered (upon request or otherwise) by any party hereto to the Controlling
Class Representative or the Lion Industrial Portfolio Controlling Party or the
Trustee with respect to the Lion Industrial Portfolio Loan Group, other than
with respect to any determination of the Fair Value of a Lion Industrial
Portfolio Pooled Mortgage Loan pursuant to Section 3.18. Any such party shall
be permitted to require payment of a sum sufficient to cover the reasonable
costs and expenses of providing such copies pursuant to this Section 3.25(d).
(e) The applicable Master Servicer or the Lion Industrial Portfolio
Special Servicer, as the case may be, shall notify the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder or its designee of any release or
substitution of collateral for the Lion Industrial Portfolio Loan Group, even
if such release or substitution is in accordance with the related Mortgage
Loan Documents. Upon determining that a Servicing Transfer Event has occurred
with respect to the Lion Industrial Portfolio Loan Group in accordance with
the definition of "Specially Serviced Mortgage Loan", the applicable Master
Servicer shall promptly notify the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder or its designee.
(f) Notwithstanding anything to the contrary contained in this
Agreement, the Lion Industrial Portfolio Controlling Party shall have the sole
right to appoint and remove the Lion Industrial Portfolio Special Servicer
with or without cause in accordance with Section 3.26.
(g) The Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
or its designee shall be entitled to access to books, records, financial
statements or other documents of the related Borrower, shall be given the
opportunity to inspect the Lion Industrial Portfolio Mortgaged Property or may
request the applicable Master Servicer or the Lion Industrial Portfolio
Special Servicer, as the case may be, to encourage the related Borrower to
reasonably cooperate to provide the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder access for its own inspection of any Lion Industrial
Portfolio Mortgaged Property or such books or records and to discuss the
business, financial and other conditions of the related Borrower with the
officers, accountants and other representatives of the related Borrower, in
each case in accordance with the terms of the Lion Industrial Portfolio
Intercreditor Agreement. Each designee of each Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder shall be entitled to access to or copies of
records and information from the applicable Master Servicer for the Lion
Industrial Portfolio Loan Group and/or the Lion Industrial Portfolio Special
Servicer to the same extent and under the same conditions as the related Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder is entitled to such
access or copies under Section 3.15 of this Agreement. In addition,
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the applicable Master Servicer shall also deliver to the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder copies of any other documents
(other than with respect to any determination of the Fair Value of a Lion
Industrial Portfolio Pooled Mortgage Loan pursuant to Section 3.18), including
without limitation, property inspection reports and loan servicing statements,
all at the sole cost of such Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder.
(h) Notwithstanding anything to the contrary contained in this
Agreement, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
shall have the rights to cure defaults under or purchase the Lion Industrial
Portfolio Pooled Mortgage Loans.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
shall be entitled to appoint any Person to serve as a representative to
exercise on behalf of the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder the rights and powers granted to the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder hereunder or under the related Mortgage Loan
Group Intercreditor Agreement; provided, however, that shall such appointment
need not be recognized hereunder unless the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder or such Person shall have delivered or
caused to have been delivered to the applicable Master Servicer and the Lion
Industrial Portfolio Special Servicer a list of officers or employees of such
Person with whom the applicable Master Servicer and the Lion Industrial
Portfolio Special Servicer may deal (including their names, titles, work
addresses and facsimile numbers).
SECTION 3.26. Replacement of Special Servicers.
(a) Subject to Section 3.26(b), the Controlling Class Representative
may remove the existing General Special Servicer hereunder (with or without
cause) and appoint a successor to the existing General Special Servicer;
provided that if any such removal is made without cause, then the costs of
transferring the special servicing responsibilities of the removed General
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. In
addition, the Lion Industrial Portfolio Controlling Party may, upon prior
written notice to the respective parties hereto, remove any existing Lion
Industrial Portfolio Special Servicer hereunder (with or without cause) and
appoint a successor Lion Industrial Portfolio Special Servicer; provided that,
if any such removal is without cause, then the costs of transferring the
special servicing responsibilities to a successor Lion Industrial Portfolio
Special Servicer shall be paid by such Lion Industrial Portfolio Controlling
Party.
(b) No removal of a Special Servicer and/or appointment of a
successor thereto pursuant to Section 3.26(a) shall be effective until: (i)
the Trustee shall have received (A) written confirmation from each of the
Rating Agencies that such removal and/or appointment will not result in an
Adverse Rating Event with respect to any Class of Rated Certificates, (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)
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substantially to the effect that (1) the removal of such terminated Special
Servicer and/or the appointment of the Person designated to serve as successor
thereto is in compliance with this Section 3.26, (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 such terminated Special Servicer has
been removed by without cause, the Certificateholders of the Controlling Class
(or, if the Lion Industrial Portfolio Special Servicer is the terminated
Special Servicer, the Lion Industrial Portfolio Controlling Party) shall have
delivered to the Trustee and the terminated Special Servicer such
Certificateholders' joint and several undertaking (or, if applicable, such
Lion Industrial Portfolio Controlling Party's undertaking) to pay any expenses
incurred by the Trustee and such 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 3.26(a) shall
be deemed to have been so terminated simultaneously with the designated
successor's becoming the applicable 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 such
terminated Special Servicer of all outstanding Servicing Advances made by such
terminated Special Servicer and all unpaid Advance Interest accrued on such
outstanding Servicing Advances (in which case the successor to such terminated
Special Servicer shall be deemed to have made such Servicing Advances at the
same time that such terminated Special Servicer had actually made them), (ii)
such terminated Special Servicer shall thereafter be entitled to Workout Fees,
as and to the extent expressly permitted by Section 3.11(c), and (iii) such
terminated Special Servicer shall continue to be entitled to the benefits of
Section 6.03, notwithstanding any such termination; and provided, further,
that such 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. Such
terminated Special Servicer shall cooperate with the Trustee and the
replacement to such terminated Special Servicer in effecting the transfer of
such 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 3.26, to the
replacement to such terminated Special Servicer for administration by it of
all cash amounts that at the time are or should have been credited by such
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 such
terminated Special Servicer with respect to any Mortgage Loan or REO Property.
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SECTION 3.27. 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 or REO
Pooled Mortgage Loan and (to the extent remitted to the applicable Master
Servicer by the related Non-Trust Master Servicer) any and all Default Charges
that are actually received by or on behalf of the Trust with respect to any
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 applicable 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
applicable 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"), in accordance with Section
3.11, as Additional Master Servicing Compensation to the applicable
Master Servicer or as Additional Special Servicing Compensation to the
applicable Special Servicer, as applicable.
(b) Default Charges applied to reimburse the Trust pursuant to clause
second of Section 3.27(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 3.27(a) shall be deemed to offset payments of Advance
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).
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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 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 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 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;
(5) after the Class Principal Balances of the Class A 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
the Class A Certificates pursuant to clause (2) above);
(6) 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;
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(7) 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;
(8) 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));
(9) 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;
(10) 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;
(11) 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));
(12) 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;
(13) 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;
(14) 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));
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(15) 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;
(16) 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;
(17) 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));
(18) 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;
(19) 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;
(20) 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));
(21) 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;
(22) 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;
(23) 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
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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 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;
(25) 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;
(26) 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));
(27) 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;
(28) 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;
(29) 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));
(30) 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;
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(31) 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;
(32) 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));
(33) 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;
(34) 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;
(35) 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));
(36) 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;
(37) 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;
(38) 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));
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(39) 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;
(40) 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;
(41) 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));
(42) 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;
(43) 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;
(44) 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));
(45) 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
(46) 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).
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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.
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 Certificates contemplated by clause (2) above to the
Holders of the respective Classes of the Class A 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
aggregate of the Class Principal Balances of the Class A-1 and Class A-2
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 and Class A-2
Certificates 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; and
(D) in the case of the Class A-4 Certificates, after the
aggregate of the Class Principal Balances of the Class A-1, Class A-2 and
Class A-3 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, Class A-2
and Class A-3 Certificates 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.
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 Certificates contemplated by clause (2) above to the
Holders of the respective Classes of the Class A 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
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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, 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 or in March 2009, 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) 70% of such funds to the Holders of the
Class X-1 Certificates and (ii) 30% of such funds to the Holders of the Class
X-2 Certificates. If such Distribution Date occurs after March 2009, 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 Premiums or Yield
Maintenance Charges Received by the Trust with respect to any 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 (which, in the case of a Non-Trust-Serviced Pooled
Mortgage Loan, shall be entitled to rely on a report of such rate by the
applicable Non-Trust Master Servicer) 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
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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.
(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
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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 Servicers 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.
(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
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(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
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Additional Trust Fund Expenses previously allocated to REMIC III in respect of
such REMIC II Regular Interest.
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, REMIC II Regular Interest A-1-3, REMIC II Regular Interest
A-1-4 and REMIC II Regular Interest A-1-5), 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, REMIC II Regular
Interest A-1-3, REMIC II Regular Interest A-1-4 and REMIC II Regular Interest
A-1-5, first, to REMIC II Regular Interest A-1-1; second, to REMIC II Regular
Interest A-1-2; third, to REMIC II Regular Interest A-1-3; fourth, to REMIC II
Regular Interest A-1-4; and, fifth, to REMIC II Regular Interest A-1-5), 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
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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.
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 Servicers, 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;
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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, 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
ARCap 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 a Special Servicer to timely deliver any information
or reports hereunder. None of the Master Servicers, the Special Servicers 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 Servicer, either Special Servicer or the Certificate Administrator, as
applicable. None of the Certificate Administrator, the Master Servicers or the
Special Servicers 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
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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 Bear, Xxxxxxx & Co. Inc. and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated 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
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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 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 Servicers 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
a Special Servicer, the Specially Serviced Mortgage Loans and the Administered
REO Properties for which it is the applicable Special Servicer, 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 such 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 any
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 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 any 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
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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 April
2004 will be based solely upon information generated from actual collections
received by such Master Servicer (or, in the case of a Non-Trust-Serviced
Pooled Mortgage Loan, by the related 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). Each 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 for which
such Special Servicer is the applicable Special Servicer 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 applicable 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 information
received, commencing with respect to the quarter ending on June 30, 2004, 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 applicable 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 (if any) received and
covering such calendar quarter and not later than thirty (30) days prior to
such 105th day, 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 2004 for year end 2003 (or,
with respect to Mortgage Loans that are purchase-money mortgage loans or that
closed after 2003, 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
applicable 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 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
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Status Report and a CMSA NOI Adjustment Worksheet for each related Mortgaged
Property and/or REO Property.
The Master Servicers and the Special Servicers 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 applicable Special Servicer. The Certificate Administrator
shall, upon request from the applicable Master Servicer or the applicable
Special Servicer and, to the extent such items have been delivered to the
Certificate Administrator by a Master Servicer or a 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 each 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 related Non-Trust
Master Servicer under the applicable Non-Trust Servicing Agreement.
If, with respect to any Performing Serviced Mortgage Loan, the
applicable Special Servicer has any questions for the related Borrower based
upon the information delivered to the applicable 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 such Special Servicer's efforts to contact and solicit
information from such Borrower.
(e) Reporting by the Special Servicers. Not later than 2:00 p.m. (New
York City time) on the first Business Day following each Determination Date,
the General Special Servicer shall prepare and deliver or cause to be
delivered to both of the Master Servicers and the Controlling Class
Representative, and the Lion Industrial Portfolio Special Servicer shall
prepare and deliver or cause to be delivered to the Master Servicer for the
Lion Industrial Portfolio Loan Group, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder and, upon request, the Controlling Class
Representative, the CMSA Special Servicer Loan File with respect to those
Specially Serviced Mortgage Loans and Administered REO Properties for which it
is the applicable Special Servicer, providing the required information as of
such Determination Date. In addition, each Special Servicer shall from time to
time provide the Master Servicers with such information in such 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
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(in the case of the Master Servicer that is not the Servicer Report
Administrator) to the Servicer Report Administrator.
(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 any 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 related 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 any 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 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 a 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 April 2004.
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
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CMSA Servicer Watch List, a CMSA NOI Adjustment Worksheet a CMSA Special
Servicer Loan File and an ARCap 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 any 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 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, 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 an ARCap 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 any 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
the related 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
any 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 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
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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 any 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 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 for the Pooled Mortgage Loans 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
(which shall be the Pooled Mortgage Loans for which 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 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.
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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 applicable 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 applicable
Special Servicer shall deliver to the applicable Master Servicer(s) the
reports set forth in 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 set forth in Section 4.02(c) 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 Servicers, the
Master Servicers and the Certificate Administrator. Each Master Servicer may,
absent manifest error, conclusively rely on the reports to be provided by a
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
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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 a Special
Servicer, the other Master Servicer or a party under a Non-Trust Servicing
Agreement, and such Special Servicer, such other Master Servicer or such party
under a Non-Trust Servicing Agreement (as the case may be) has not timely
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 such
Special Servicer, such other Master Servicer or such party under a 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 such Special Servicer, such other Master Servicer or such
party under a 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 a 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 such 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 such 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 Special
Servicer is required to deliver any statement, report or information under any
provision of this Agreement, such Master Servicer or such 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 each 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 such 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 either Special Servicer, as
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the case may be, unless the Certificate Administrator, the Trustee or such
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 a 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 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.
(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 any 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 related 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 any 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.
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(p) With respect to the Lion Industrial Portfolio Loan Group, the
applicable Master Servicer shall deliver or cause to be delivered to the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder (or its designee), the
Certificate Administrator (upon request), the Lion Industrial Portfolio
Special Servicer and the Controlling Class Representative the following
materials, in writing or by electronic means reasonably acceptable to the Lion
Industrial Portfolio Non-Pooled Subordinate 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 the Lion Industrial Portfolio 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 the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder was less than the full amount
that would have been distributable to the Lion Industrial Portfolio
Non-Pooled Subordinate 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
the Lion Industrial Portfolio Loan Group immediately following payment
for such period;
(iv) the aggregate amount of unscheduled payments of principal
allocable to each Mortgage Loan in the Lion Industrial Portfolio 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 the Lion Industrial Portfolio Loan Group and interest thereon as of
the end of, and all interest paid on Servicing Advances with respect to
the Lion Industrial Portfolio Loan Group during, the prior calendar
month;
(vii) the amount of the servicing compensation paid to the
applicable Master Servicer and the Lion Industrial Portfolio Special
Servicer with respect to the Lion Industrial Portfolio 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 Lion Industrial
Portfolio Special Servicer as allocated among the Mortgage Loans in the
Lion Industrial Portfolio Loan Group;
(viii) information relating to the status of the Lion Industrial
Portfolio 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);
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(ix) the amount of any shortfalls in distributions to the
holders of the Mortgage Loans in the Lion Industrial Portfolio 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 Lion Industrial Portfolio Pooled Mortgage Loans.
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 each
Non-Trust-Serviced Pooled Mortgage Loan or REO Pooled Mortgage Loan that is a
successor thereto), any comparable master servicing fees under the related
Non-Trust Servicing Agreement), due or
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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 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 applicable
Special Servicer any analysis, Appraisals or market value estimates or other
information in the possession of the applicable 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 applicable 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 applicable 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
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entitled to conclusively rely on any nonrecoverability determination made by a
Master Servicer with respect to a particular P&I Advance. The applicable
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 applicable 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 information)
of the applicable Special Servicer in support of its determination shall be
promptly delivered to the Master Servicer for the subject Mortgage Loan. The
applicable Special Servicer may update or change its recoverability
determination at any time.
In connection with each Non-Trust-Serviced Pooled Mortgage Loan, (i)
if the applicable Master Servicer receives written notice (which notice is
accompanied by the supporting evidence for such determination) that the
related Non-Trust Master Servicer for the related Non-Pooled Pari Passu
Companion Loan under the related Non-Trust Servicing Agreement has determined,
pursuant to such Non-Trust Servicing 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 applicable
Special Servicer and the Depositor or shall forward a copy of the written
notice received from such Non-Trust Master Servicer; (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 Non-Trust Master Servicer, or if P&I Advances
related to such Non-Trust 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 applicable Special
Servicer and the Depositor; (iii) if such Master Servicer determines that any
P&I Advance made or to be made with respect to such Non-Trust-Serviced Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) is or,
if made, would be a Nonrecoverable P&I Advance, then the Master Servicer shall
notify in writing such Non-Trust Master Servicer 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 Non-Trust-Serviced Pooled
Mortgage Loan (or any successor REO Mortgage Loan with respect thereto) are no
longer Nonrecoverable P&I
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Advances, then such Master Servicer shall notify in writing such Non-Trust
Master Servicer of such determination (which notice shall be accompanied by the
supporting evidence for such determination as contemplated by the preceding
paragraph). Each of the Non-Pooled Pari Passu Companion Noteholders (and its
related Non-Trust Master Servicer) 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 Non-Trust
Servicing Agreement that imposes (in connection with the related Non-Pooled
Pari Passu Companion Loan) on such Non-Trust Master Servicer duties (among
others) that are substantially the same as the duties that are imposed (in
connection with the related Non-Trust-Serviced 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 Non-Trust-Serviced Pooled Mortgage Loan as
described above, such Master Servicer shall promptly forward such notice and
the accompanying information to the applicable related Non-Trust Master
Servicer.
(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
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
3.27, 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
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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 the Lion Industrial Portfolio Non-Pooled Subordinate
Loans 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 the 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 and Class B 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 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 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-1, REMIC II Regular Interest
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G-2, REMIC II Regular Interest F, 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 and REMIC II Regular Interest B-2, 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 respective Uncertificated Principal Balances of the REMIC II
Regular Interests that are Corresponding REMIC II Regular Interests with
respect to the Class A-1 Certificates, as a collective matter, in the order
described in the next sentence, (B) 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 respective
Uncertificated Principal Balances of the REMIC II Regular Interests that are
Corresponding REMIC II Regular Interests with respect to the Class A-3
Certificates, as a collective matter, in the order described in the next
sentence, and (D) the respective Uncertificated Principal Balances of the
REMIC II Regular Interests that are Corresponding REMIC II Regular Interests
with respect to the Class A-4 Certificates, as a collective matter, in the
order described in the next sentence, shall be reduced on a pro rata basis in
accordance with the relative sizes of such Uncertificated Principal Balances,
until any such remaining excess is reduced to zero. Any reductions in the
Uncertificated Principal Balances of the REMIC II Regular Interests that are
Corresponding REMIC II Regular Interests with respect to a particular Class of
Class A Certificates pursuant to the preceding sentence shall be made to the
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 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, REMIC II Regular
Interest A-1-3, REMIC II Regular Interest A-1-4 and REMIC II Regular Interest
A-1-5, first, to REMIC II Regular Interest A-1-1; second, to REMIC II Regular
Interest A-1-2; third, to REMIC II Regular Interest A-1-3; fourth, to REMIC II
Regular Interest A-1-4; and, fifth, to REMIC II Regular Interest A-1-5), 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 to the extent that such excess exists
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(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 Servicers, 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 B, Class C, Class D,
Class X-1, Class X-2, 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 and Class A-4 Certificates,
$100,000 in the case of the Class B, Class C, Class D and Class E
Certificates, $250,000 in the case of the Interest Only 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
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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
Servicers 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 each 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.
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; or (ii) an Opinion
of Counsel satisfactory to the Certificate Administrator to the effect that
the 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 or of the Depositor, either Master Servicer,
either 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
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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 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 X-2, 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 X-2, 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
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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 X-2, 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 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 X-2, 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.
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None of the Depositor, the Underwriters, the Certificate
Administrator, the Trustee, the Fiscal Agent, the Master Servicers, the
Special Servicers, 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, each
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, either Special 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 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
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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 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, a Master Servicer, a Special 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 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 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
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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
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
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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:
(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
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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.
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(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).
SECTION 5.03. Book-Entry Certificates.
(a) The Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class X-1, Class X-2, 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
X-2, 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 X-2, 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
Servicers, 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
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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 Servicers, 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 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
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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 Servicers, 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 Servicers, 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.
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
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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 SERVICERS
SECTION 6.01. Liability of the Depositor, the Master Servicers and
the Special Servicers.
The Depositor, the Master Servicers and the Special Servicers 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 each Special Servicer.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor,
a Master Servicer or a Special Servicer.
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers
and the Special Servicers 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
Servicers 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 a Special Servicer shall be a party, or any Person succeeding to
the business of the Depositor, a Master Servicer, a Special Servicer, shall be
the successor of the Depositor, such Master Servicer or a 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 a
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) 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), Section 2.07 (in the case of a successor or
surviving Person to the General Special Servicer), as applicable or Section
2.08 (in the case of a successor or surviving Person to the Lion Industrial
Portfolio Special Servicer).
SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicers and the Special Servicers.
(a) None of the Depositor, the Master Servicers or the Special
Servicers shall be under any liability to the Trust, the Trustee, the
Certificateholders or the Lion Industrial
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Portfolio Non-Pooled Subordinate 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 a Special Servicer against any liability to the Trust, the
Trustee, the Certificateholders or the Lion Industrial Portfolio Non-Pooled
Subordinate 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, each Special Servicer and any director, member, manager,
officer, 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, each 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 Servicers 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 a 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 hereunder. In such event, the
legal expenses and costs of such action, and any liability resulting
therefrom, shall be expenses, costs and liabilities of the Trust, and the
Depositor, such Master Servicer or such 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 the Lion Industrial Portfolio
Non-Pooled Subordinate Loans, such loss, liability, cost or expense shall
instead be payable by the Lion Industrial Portfolio Non-Pooled Subordinate
Noteholder out of amounts on deposit in the Lion Industrial Portfolio
Subordinate Note Custodial Account and shall be payable out of the
Distribution Account or a Collection Account only to the extent that amounts
recoverable on Lion Industrial Portfolio Non-Pooled
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Subordinate Loans shall be insufficient to cover the portion of such loss,
liability, cost or expense so payable out of the Lion Industrial Portfolio
Subordinate Note Custodial Account.
(b) In addition, none of the Master Servicers and the Special
Servicers shall have any liability with respect to, and each of the Master
Servicers and the Special Servicers 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 such Special Servicer, as the case may be,
and conforming to the requirements of this Agreement. Each of the Master
Servicers and the Special Servicers 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
Servicers 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 such 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 Counsel.
Furthermore, none of the Master Servicers and the Special Servicers 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 Master Servicers and Special
Servicers.
(a) Each of the Master Servicers and the Special Servicers 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 such 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 such Special Servicer, as the
case may be, at the date of this Agreement). Any such determination requiring
the resignation of a Master Servicer or a 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, if affected, the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder). Unless applicable law requires the
resignation of a Master Servicer or a 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 3.26 or Section
7.02 hereof; provided that, if no successor to such Master Servicer or such
Special Servicer, as the case may be, shall have been so appointed and have
accepted appointment within 90 days after such Master Servicer or such 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.
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(b) In addition, each of the Master Servicers and the Special
Servicers 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 has a master servicer rating from Fitch that
is equal to or greater than "CMS2" or such successor is the other Master
Servicer), (c) solely in the case of the Lion Industrial Portfolio Special
Servicer if it is a resigning Special Servicer, acceptable to the Lion
Industrial Portfolio Controlling Party in its discretion and (d) solely in the
case of the General 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) each of
the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, (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 Servicers 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 Servicers 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 a 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 such 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 a Special Servicer) to the extent
provided in Section 3.11(c).
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Master Servicers and the Special Servicers.
Each of the Master Servicers and the Special Servicers 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 Servicers shall furnish the Depositor and the
Trustee with its most recent publicly available annual audited financial
statements (or, if not available, the most recent publicly available audited
annual financial statements of its 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 Servicers 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
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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 a Special Servicer hereunder or exercise the rights of a Master Servicer or
a Special Servicer hereunder; provided, however, that none of the Master
Servicers and the Special Servicers 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 a 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 Servicers 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, a Special Servicer or an Affiliate thereof. If, at any
time during which any Master Servicer, Special Servicer or Affiliate of a
Master Servicer or a 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 such 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 such 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 such
Special Servicer (as the case may be), be considered by other Persons to
violate the Servicing Standard, then such Master Servicer or such 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 such 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 such 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 such 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
such Special Servicer or its Affiliates, as the case may be) shall have
consented in writing (with a copy to the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, if the Lion Industrial Portfolio Loan Group is
involved) to the proposal described in the written notice, and if such Master
Servicer or such 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 subject 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 Lion
Industrial Portfolio Mortgage Loan Group) the Lion Industrial Portfolio
Subordinate Note Custodial Account 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 a Special Servicer, any failure by such
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 or (if applicable) the Lion Industrial Portfolio
Subordinate Note Custodial Account, 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) 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
(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 a Special Servicer to timely make (or request
the applicable Master Servicer to make) any Servicing Advance required to
be made by it
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hereunder, which Servicing Advance remains unmade for a period of one
Business Day following the date on which notice has been given to such
Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or a 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 such
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 such Special Servicer,
as the case may be, by any other party hereto or to such Master Servicer
or such 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 or, if affected by the failure, by the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder; provided,
however, that, with respect to any such failure that is not curable
within such 30-day period, such Master Servicer or such 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 such 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 a Special
Servicer of any representation or warranty contained in this Agreement
that materially and adversely affects the interests of any Class of
Certificateholders or the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder 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 such
Special Servicer, as the case may be, by any other party hereto or to
such Master Servicer or such 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 or, if affected by such
breach, the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder;
provided, however, that, with respect to any such breach that is not
curable within such 30-day period, such Master Servicer or such 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 such 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 a Special Servicer and such decree or order
shall have remained in force undischarged, undismissed or unstayed for a
period of 60 days; or
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(ix) a Master Servicer or a 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 a 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 is removed from S&P's approved master
servicer list or a 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 Certificates
are downgraded, qualified or withdrawn (including, without limitation,
being placed on a negative credit watch) in connection with such removal;
or
(xii) both (A) the Trustee receives notice from Fitch to the
effect that the continuation of a Master Servicer or a Special Servicer
in its respective capacity as such would result in the downgrade or
withdrawal of any rating then assigned by Fitch to any Class of Rated
Certificates and (B) such notice is not withdrawn, terminated or
rescinded within 90 days following the Trustee's receipt of such notice;
or
(xiii) any failure by the applicable Master Servicer to timely
make any payment required to be made by it hereunder to the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder.
When a single entity acts as two or more of the capacities of the
Master Servicers and the Special Servicers, an Event of Default (other than an
event described in clauses (xi), (xii) and (xiii) above) in one capacity shall
constitute an Event of Default in both or all such capacities.
(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 a Special Servicer) the Controlling
Class Representative (but, if the Lion Industrial Portfolio Special Servicer
is the Defaulting Party and a Lion Industrial Portfolio Change of Control
Event has not occurred or is not continuing, then only the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder (and neither such Holders nor the
Controlling Representative) shall have the right to give such direction), 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
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Certificates, the Mortgage Loans or otherwise (other than as a Holder of any
Certificate or as a Lion Industrial Portfolio Non-Pooled Subordinate
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 Servicers 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 Servicers 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 such 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 such 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, the Lion Industrial Portfolio
Subordinate Note Custodial Account (if such Master Servicer is the applicable
Master Servicer for the Lion Industrial Portfolio 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, the Lion Industrial Portfolio Subordinate 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 such 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 such 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 Master Servicer for the
Lion Industrial Portfolio Loan Group occurs and affects the Lion Industrial
Portfolio Non-Pooled Subordinate Loans 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 Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder shall be entitled to
require the Master Servicer to appoint a Sub-Servicer that will be responsible
for servicing the Lion Industrial Portfolio Loan Group.
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(c) Notwithstanding Section 7.01(b) of this Agreement, if a Master
Servicer is terminated 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 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 that the appointment of such person would
not result in the downgrade, withdrawal or qualification of a current rating
on any of the Rated Certificates (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 termination of the terminated Master Servicer. 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 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
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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 Trustee was
appointed as successor to the terminated Master Servicer 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 3.26, be the
successor in all respects to such Master Servicer or such 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 such 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 such 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 or (solely in the case of the Lion Industrial
Portfolio Special Servicer) the Lion Industrial Portfolio Controlling Party so
request(s) in writing, the Trustee shall), subject to Section 3.25(f),
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 such 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 Rating Agency); (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) has a master
servicer rating from Fitch that is lower than "CMS2", such successor is
reasonably acceptable to the Controlling Class Representative and, if such
successor (other than if such successor is the other
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Master Servicer) has a master servicer rating from Fitch that is "CMS2" or
above, the Controlling Class Representative shall have been consulted with
respect to the identity of (although it need not have approved) such successor
and (iii) in the case of the Lion Industrial Portfolio Special Servicer, such
successor is acceptable to the Lion Industrial Portfolio Controlling Party in
its sole discretion. 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.
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 Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or Special
Servicer pursuant to Section 7.01, any appointment of a successor to a Master
Servicer or 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
3.26, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register and to the Lion Industrial Portfolio Non-Pooled Subordinate
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
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(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 involving the Lion Industrial Portfolio Non-Pooled
Subordinate Loans) on behalf of the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, 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 (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, a 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.
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(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.
(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 a 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, either 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
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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 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
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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 a Special
Servicer (unless, in the case of the Trustee, it is acting as a Master
Servicer or a Special Servicer, as the case may be) or of the Depositor;
and
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(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. 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 a 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 a Special Servicer and such Master Servicer or such
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.
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SECTION 8.04. Trustee, Fiscal Agent, Certificate Administrator and
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.
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
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 March 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 March 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 the Lion Industrial Portfolio Non-Pooled
Subordinate Loans, such loss, liability, cost or expense shall instead be
payable by the Lion Industrial Portfolio Non-Pooled Subordinate Noteholder out
of amounts on deposit in the Lion Industrial Portfolio Subordinate Note
Custodial Account and shall be payable out of the Distribution Account or a
Collection Account only to the extent that amounts recoverable on the
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Lion Industrial Portfolio Non-Pooled Subordinate Loans shall be insufficient
to cover the portion of such loss, liability, cost or expense so payable out
of the Lion Industrial Portfolio Subordinate Note Custodial Account.
(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 a 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 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 Servicers 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 such
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 such 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 such 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 Servicers 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
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case may be, negligent acts or omissions in connection with this Agreement;
provided, however, that if a Master Servicer or 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 either
Special Servicer as regards rights and obligations prior to such termination,
resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee, Certificate
Administrator and 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 "A+" from S&P and
a short-term unsecured debt rating from each Rating Agency of at least "A-1"
in the case of S&P and "F1" in the case of Fitch (or, in the case of either
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, the Certificate Administrator, the Tax Administrator and the
Depositor 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 "BBB" from each Rating Agency (or, in
the case of either Rating Agency, such lower rating 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))
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 "A" from
each Rating Agency (or, in the case of either Rating Agency, such lower rating
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)) 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
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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 Servicers 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 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 Trustee, Certificate
Administrator and 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
Servicers, 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 (as confirmed in writing to the Depositor by
either Rating Agency) result in an Adverse Rating Event with respect to any
Class of Rated Certificates, 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
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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 "A+" from S&P and a short-term unsecured debt rating from
each Rating Agency of at least "A-1" in the case of S&P and "F-1" in the case
of Fitch, the Trustee and the Depositor have received written confirmation
from each Rating Agency 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.
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, each 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, each 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
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vest and confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No successor trustee, 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 Trustee, Certificate
Administrator or 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
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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.
(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, each 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, each 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
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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, each 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
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 Servicers 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 Servicers,
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 a 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 a Non-
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Trust-Serviced Pooled Mortgage Loan, prepared by the comparable servicing
party under the related 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
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, a 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 any 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 related 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
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the Certificate Administrator, the Trustee or the 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 "A+" from S&P and
"AA-" from Fitch, and a short-term unsecured debt rating from such Rating
Agency of at least "A-1" in the case of S&P and "F1" in the case of Fitch (or,
in the case of either 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 "AA-" from each
Rating Agency, 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; (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
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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 a 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 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 Servicers, 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
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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.
(b) The Form 10-K shall include any certification (the
"Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to
the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the
Commission promulgated thereunder (including any interpretations thereof by
the Commission's staff). Each Master Servicer, each 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
General Special Servicer shall contain the following information:
(i) a statement acknowledging that the officer of the General
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
General 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 General Special Servicer
and/or payments and other collections on the Specially Serviced
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Mortgage Loans and REO Properties for which it is the applicable Special
Servicer, 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
General 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 General Special Servicer
and/or payments and other collections on the Specially Serviced Mortgage
Loans and REO Properties for which it is the applicable Special Servicer,
includes all information of such type available to the General 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
General Special Servicer that is signing such certification, that the
General 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 a
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.
(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
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such party of any of its obligations under this Agreement. The Depositor, each
Master Servicer, each 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 General 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 General 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 the Lion Industrial Portfolio Pooled
Mortgage Loans or any Non-Trust-Serviced Pooled Mortgage Loan, 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 the Lion Industrial
Portfolio Pooled Mortgage Loans or any Non-Trust-Serviced Pooled Mortgage
Loan, 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 General Special Servicer
and approved by the Certificate Administrator and the applicable Master
Servicer, minus (C) if the purchaser is a Master Servicer or the General
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 General 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 the Lion
Industrial Portfolio Pooled Mortgage Loans or any Non-Trust-Serviced Pooled
Mortgage Loan, 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 General Special
Servicer, in that order of preference, may at its option elect to purchase all
the Pooled Mortgage Loans and each 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 General Special Servicer, to the
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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
(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 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 the Lion Industrial Portfolio Pooled Mortgage Loans or
any Non-Trust-Serviced Pooled Mortgage Loan, 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 General 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 the deposit of the Termination Price has been made to the
Collection Accounts and, if applicable, the Lion Industrial Portfolio
Subordinate Note Custodial Account in accordance with the second preceding
sentence and the reimbursement contemplated by the second preceding sentence
has been made to the parties hereto, the Trustee shall release or cause to be
released to the purchasing party (or its designee) the Mortgage Files
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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 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
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, each 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 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 General 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
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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 General 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 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 General 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
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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 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
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under Article III or this Section 10.01; (vi) the applicable Special Servicer,
if such tax arises out of or results from a breach by such 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 applicable Special Servicer, if such tax arises out of or
results from a breach by such 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 a 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 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 Servicers, 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
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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 Servicers 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. Depositor, Master Servicers, Special Servicers and
Fiscal Agent to Cooperate with 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.
(b) Each of the Master Servicers, the Special Servicers and the
Fiscal Agent shall furnish such reports, certifications and information in its
possession, and access to such
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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 (exclusive of the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder or any of the other Non-Pooled Noteholders),
without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which
may be inconsistent with any other provision herein 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 Servicers, 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, written
confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in an Adverse Rating Event with respect to any
Class of Rated Certificates); (III) with respect to any such amendment for the
specific purposes described in clause (iii) above, the Trustee and the
Certificate Administrator shall receive written confirmation from each
applicable Rating Agency to the effect that such amendment shall not result in
an Adverse Rating Event with respect to any Class of Rated Certificates; and
(IV) no such amendment may adversely affect the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder without the written consent of the Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder. 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 (exclusive of the Lion Industrial
Portfolio Non-Pooled
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Subordinate Noteholder), 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, 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
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), (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 or (vi) adversely affect the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder, without the consent of the Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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 Servicers 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 the Lion Industrial Portfolio
Non-Pooled Subordinate 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.
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(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.
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 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.
(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
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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: (000) 000-0000; (iii) in the case of WFB as a Master
Servicer, Xxxxx Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Commercial Mortgage
Servicing (with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National
Association, 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 94111);
(iv) in the case of the General 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 Xxxxx, ARCap
Servicing, Inc., 0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
telecopy number (000) 000-0000); (v) in the case of the Lion Industrial
Portfolio Special Servicer, Prudential Asset Resources, Inc., Xxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, Attention: Legal Department, telecopy
number (000) 000-0000); (vi) 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 Inc., 2004-PWR3, telecopy number: (000) 000-0000; (vii) in the case
of the Trustee, LaSalle Bank National Association, 000 Xxxxx
-000-
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed
Securities Trust Services Group, Bear Xxxxxxx Commercial Mortgage Securities
Inc., 2004-PWR3, telecopy number: (000) 000-0000; (viii) 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 Inc., 2004-PWR3, telecopy number: (312)
904-2084; (ix) in the case of the Rating Agencies, (A) 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, and (B) Fitch, Inc., Xxx Xxxxx Xxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance; 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.
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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, the
Lion Industrial Portfolio Non-Pooled Subordinate 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.
(c) Each of the Master Servicers and the Special Servicers 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, such other
information in the
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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 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 Servicers 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.
-334-
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 INC.
Depositor
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
PRUDENTIAL ASSET RESOURCES, INC.
a Master Servicer and the Lion
Industrial Portfolio Special
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.
General 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/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V.
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Sr. Vice President
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Second Vice President
PSA
STATE OF ___________________ )
) ss.:
COUNTY OF _________________ )
On the ______ day of ______ 2004, before me, a notary public in and
for said State, personally appeared __________________, personally known to me
to be a _________________ of _________________________________________, 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.
-----------------------------------
Notary Public
[Notarial Seal]
Notary Page to PSA
EXHIBIT A-1
FORM OF CLASS X-0, X-0, X-0, X-0, 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-PWR3
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 INC.
Pass-Through Rate: [____% Class [Principal Balance] [Notional Amount] of the
per annum][Variable] Class [ ] Certificates as of the Closing Date:
$__________
Closing Date: March 18, 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
April 12, 2004 Loans as of the Closing Date ("Initial Pool
Balance"): $1,108,470,769
Master Servicer and Lion Industrial Portfolio Special Trustee:
Servicer: LaSalle Bank National Association
Prudential Asset Resources, Inc.
Master Servicer: Certificate Administrator and Tax Administrator:
Xxxxx Fargo Bank, National Association Xxxxx Fargo Bank, National Association
General 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 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 March 1, 2004 (the
"Agreement"), among Bear Xxxxxxx Commercial Mortgage
A-1-3
Securities Inc. as depositor (the "Depositor," which term includes any
successor entity under the Agreement), Prudential Asset Resources, Inc.
("PAR"), as a master servicer (in such capacity, a "Master Servicer," which
term includes any successor entity under the Agreement) and as special
servicer of the Lion Industrial Portfolio Loan Group (in such capacity, the
"Lion Industrial Portfolio Special Servicer"), Xxxxx Fargo Bank, National
Association ("WFB"), 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 of all the mortgage loans other than the Lion Industrial Portfolio
Loan Group (in such capacity, the "General 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), ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent," which term includes any successor entity under the Agreement) and The
Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder (the "Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder," 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.
A-1-4
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), 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, either 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
A-1-5
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 144A Global Certificate, 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 Servicers, 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, each Special Servicer, the Tax
Administrator and the
A-1-6
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.]
[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 Depsoitory.]
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 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 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 to the effect
that the purchase and holding of this Certificate 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 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 or 90-29, 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, either Special Servicer,
any Sub-Servicer, any Person responsible for 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 are Plans a written
representation that such Transferee, if a Plan, 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); 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.]
A-1-7
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.
[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 Servicers, 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 Servicers, 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
Servicers, 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 General
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 General 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 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.
A-1-8
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 (exclusive of the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder) 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, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder and/or 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 Amount of Principal Amount of authorized officer
Decrease in Principal Increase in Principal this Global Security of Trustee or
Date of Exchange Amount of this Amount of this following such securities
Global Security Global 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-PWR3
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 INC.
Closing Date: March 18, 2004 Percentage Interest evidenced by
this Class R Certificate: ___%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 2004 Loans as of the Closing Date ("Initial Pool
Balance"): $1,108,470,769
Master Servicer and Lion Industrial Portfolio Special Trustee:
Servicer: Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer : Certificate Administrator and Tax Administrator:
Xxxxx Fargo Bank, National Association Xxxxx Fargo Bank, National Association
General 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.
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 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
A-2-2
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.
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 March 1,
2004 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.
as depositor (the "Depositor," which term includes any successor entity under
the Agreement), Prudential Asset Resources, Inc. ("PAR"), as a master servicer
(in such capacity, a "Master Servicer," which term includes any successor
entity under the Agreement) and as special servicer of the Lion Industrial
Portfolio Loan Group (in such capacity, the "Lion Industrial Portfolio Special
Servicer"), Xxxxx Fargo Bank, National Association ("WFB"), 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 of all the mortgage
loans other than the Lion Industrial Portfolio Loan Group (in such capacity,
the "General 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), ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent," which term includes any successor
entity under the Agreement) and The Prudential Insurance Company of America,
as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder (the "Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder," 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
A-2-3
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), 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 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, either 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 Servicers, 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
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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, each 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 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
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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 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 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
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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 Servicers, 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 Servicers, 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
Servicers, 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 General
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 General 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 (exclusive of the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder) 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, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder and/or 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
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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 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-PWR3
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 INC.
Closing Date: March 18, 2004 Percentage Interest evidenced by this Class V
Certificate: ______%
First Distribution Date: Aggregate Stated Principal Balance of the Mortgage
April 12, 2004 Loans as of the Closing Date ("Initial Pool
Balance"): $1,108,470,769
Master Servicer and Lion Industrial Portfolio Special Trustee:
Servicer: Prudential Asset Resources, Inc. LaSalle Bank National Association
Master Servicer: Certificate Administrator and Tax Administrator:
Xxxxx Fargo Bank, National Association Xxxxx Fargo Bank, National Association
General 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 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 March 1,
2004 (the "Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.
as depositor (the "Depositor," which term includes any successor entity under
the Agreement),
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Prudential Asset Resources, Inc. ("PAR"), as a master servicer (in such
capacity, a "Master Servicer," which term includes any successor entity under
the Agreement) and as special servicer of the Lion Industrial Portfolio Loan
Group (in such capacity, the "Lion Industrial Portfolio Special Servicer"),
Xxxxx Fargo Bank, National Association ("WFB"), 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 of all the mortgage loans other than
the Lion Industrial Portfolio Loan Group (in such capacity, the "General
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), ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent," which term includes any successor
entity under the Agreement) and The Prudential Insurance Company of America,
as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder (the "Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder," 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
A-3-3
Liquidation Proceeds Account, the REO Accounts (if established), 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
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, either
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 Servicers, 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, each 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
A-3-4
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 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 Servicers, 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 Servicers, 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
Servicers, 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.
A-3-5
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 Loan or REO Property remaining in the Trust Fund; (ii) the purchase
by one or both Master Servicers, the General 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 General 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 (exclusive of the Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder) 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, the Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder and/or 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-3-6
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
[See Tab 16]
B-1
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 Inc., 2004-PWR3
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
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 March 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc. as depositor,
Prudential Asset Resources, Inc. as a master servicer (in such capacity, a
"Master Servicer") and as Lion Industrial Portfolio special 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 general special servicer, ABN AMRO Bank N.V., as
fiscal agent, The Prudential Insurance Company of America, as Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder 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 Inc., 2004-PWR3
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
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 March 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc. as depositor,
Prudential Asset Resources, Inc. as a master servicer and as Lion Industrial
Portfolio special servicer (in such capacity, the "Lion Industrial Portfolio
Special Servicer"), Xxxxx Fargo Bank, National Association, as a master
servicer, as certificate administrator and as tax administrator, ARCap
Servicing, Inc. as general special servicer (in such capacity, the "General
Special Servicer"), ABN AMRO Bank N.V., as fiscal agent, The Prudential
Insurance Company of America, as Lion Industrial Portfolio Non-Pooled
Subordinate Noteholder and you as trustee (in such capacity, the "Trustee"),
the undersigned as [Lion Industrial Portfolio] [General] 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
C-2-1
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 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 [Lion Industrial
Portfolio][General] Special Servicer
By: ______________________________________
Name:
Title:
C-2-2
EXHIBIT D
FORM OF CERTIFICATE ADMINISTRATOR REPORT
[See Appendix E to the Prospectus Supplement]
D-1
EXHIBIT E-1
FORM OF ARCAP INTEREST ON ADVANCE RECONCILIATION REPORT
The report shall set forth, for each 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 3.27 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
Loan Loan Pro-Sup Ending Scheduled Late Unallocated Outstanding Outstanding Paid First Grace
Due
Nbr Officer Id Property Sch.Prin.Bal. Payment Fees Suspense P & I Servicing To Date Date Days Comments
Name Advances Advances
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]
--------------------------------------------------------------------------------------------------------------------------
LOAN TAB BORROWERS PAID TO DATE PRINCIPAL GROSS ADMIN FEE ASER NET T & I SERVICING
NUMBER No NAME ADVANCE INTEREST PORTION AMO INTERE ADVANC ADVANCE
BALANCE ADVANCE UNT ST E BALANCE
BALANCE ADVAN
CE
--------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
TOTALS
==========================================================================================================
[TABLE CONTINUED]
------------------------------------------------------
LOAN PAID TO DATE INTEREST TOTAL ACTUAL
NUMBER ON ADVANCE PRINCIPAL
ADVANCES BALANCE BALANCE
------------------------------------------------------
--------------------------------------------------------------
TOTALS
==============================================================
E-3-1
EXHIBIT E-4
FORM OF ARCAP REALIZED LOSS REPORT
-----------------------------------------------------------------------------------------------------------------------------
Realized Loss Form (prepared by Special
and Master Servicer)
(applicable to Final Recovery Determination/Realized Loss) Date:
-----------------------------------------------------------------------------------------------------------------------------------
(Total Funds Received on Corrected Mortgage Loan and Specially Serviced Mortgage Loan:
Sales Proceeds or Payoff Proce 3,600,000.00
Insurance Proceeds -
Suspense Balance -
Tax & Insurance Reserve Balance -
Other Reserve Balance -
Other Proceeds -
----------------
3,600,000.00
Less: Liquidation Expenses
Broker Fees 95,105.19
Other Selling Expenses -
----------------
(95,105.19)
----------------------------------
Proceeds available | 3,504,894.81 |
---------------------------------------------------------------------------------------------------------------------------------
1) Amounts Due Servicers and Trustee:
Includes Current Period and Accrued Servicing Fees and Other Fees:
(Excludes items from Additional Trust Fund Expenses)
a Liquidation Fee to SS on SS loan 35,048.95
b Workout Fee on Corrected Mtg. loan -
c Master Servicing Fees -
d Special Servicing Fees -
e Trustee Fees -
f Other Fees -
g P & I Advances -
h Interest on Advances- P & I 12,514.30
i T&I Advances -
j Interest on Advances- T&I -
k Servicing Advances -
l Interest on Advances-Servicing Advances -
Total 47,563.25
2) Amounts held back for future payment:
a Other Unpaid Fees and expenses 3,000.00
b Other amounts -
Total 3,000.00
3) Recovery of accrued interest (current period and prior interest shortfalls)
a Current Scheduled Interest (net of fees) 36,863.48
b ASER Recovery 50,000.00
c Deemed non-recoverable interest (prior shortfall) 695,006.76
d Deemed non-recoverable interest (paid from trust principal) -
e Other unpaid interest -
----------------
Total 745,006.76
4) Recovery of Additional Trust fund Expenses (prior interest shortfalls or principal losses)
a Special Servicing Fees 2,000.00
b Work Out fees (Corrected Mortgage Loan) -
c Interest on Advances 15,000.00
d Other expenses: (Inspection by SS, Environmental, legal etc.) -
e Unliquidated Advances (work-out delayed reimb.paid from trust-principal) -
f Deemed Non-Recoverable Principal Advances (paid from trust-Principal) 1,282,322.37
g Deemed Non-Recoverable Servicing Advances (paid from trust-Principal) -
Total 1,299,322.37
-------------------
Total #1 through #4 | (2,094,892.38) |
-------------------
----------------
Net Proceeds (Proceeds available less #1 thru #4) | 1,410,002.43 |
----------------
(Proceeds available for Principal Distribution) (must be greater than zero)
----------------
Stated Principal Balance (Trust) | 5,833,393.01 |
----------------
---------------
Realized Loss ( Stated Principal Balance less Net Proceeds) | 4,423,390.58 |
------------------------------------------------------------ ---------------
-----------------------------------------------------------------------------------------------------------------------------------
If Realized Loss > Stated Principal Balance ( if positive number) (1,410,002.43)
------------------------------------------------------------------
(refer to PSA for allocation)
a Amounts allocated to Interest shortfall--Current Period -
b Amount applied to Interest shortfall or 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 Reductions (prior Realized Losses)
Date Description Amount Class that received funds
---- ----------- ------ -------------------------
----------------------------------------------------------------------------------------------------------------------------------
Additional Expenses after Final Recovery Determination/Realized Loss allocated to Interest Shortfalls
Date Description Amount Class that received hit
---- ----------- ------ -----------------------
-
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Signature and Title of Servicing Officer Date
cc: Special Servicer, Master Servicer, Trustee, attachment to Distribution Statement
----------------------------------------------------------------------------------------------------------------------------------
Instructions to Master Servicer Items that
and Trustee affect CH*
--------------------------------------------------------
----
1)
a
b
c
d
e
f
g
h
i
j
k
l
2) Place in suspense until legal final
a invoice received
b
3) *
a *
b *
c *
d *
e *
*
4) *
a *
b *
c *
d *
e *
f *
g *
*
*
*
*
----
*
a
b
c
d
----
*
Date
----
----
*
Date
----
----
----
cc:
----
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 I.D. should have five leading characters, a decimal point, and
the Property # (1,2,3,etc).
The Statement Types are: OS - Operating Statement (PDF or TIF format)
OSAR- Operating Statement Analysis Report & NOI
ADJ Worksheet (Excel Format named
individually, not rolling format)
FS - Borrower Financial Statement (PDF or TIF)
RR - Rent Roll (Excel or PDF or TIF)
PI-- Property Inspection (Excel format)
HS- Healthcare Survey
FR- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO =
months from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as
1999 or 2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
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 loan documents Actual PDF/TIF Per Section 3.12/4.02 of PSA
----------------------------------------------------------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF Within 30 days of annual or other
inspection per Section 3.12 of PSA
----------------------------------------------------------------------------------------------------------------------------------
P&I Advances as of Remittance Date Report(1) Monthly Excel Master Servicer Remittance Date
----------------------------------------------------------------------------------------------------------------------------------
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 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
#1 above, a list of all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in Master Servicer's opinion, for the mortgage loans
continued delinquency, along with an explanation of Master Servicer's attempts
to cure.
ARCap requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed dates via
E-Mail to the following address.
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-6-1
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-PWR3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of March 18, 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 March 1, 2004 among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as Depositor, Prudential Asset Resources, Inc., as a
Master Servicer and as Lion Industrial Portfolio Special Servicer, Xxxxx Fargo
Bank, National Association, as a Master Servicer, as Certificate Administrator
and as Tax Administrator, ARCap Servicing, Inc., as General Special Servicer,
LaSalle Bank National Association, as Trustee, ABN AMRO Bank N.V., as Fiscal
Agent, and The Prudential Insurance Company of America, as Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder. 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
F-1-1
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 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-PWR3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of March 18, 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 March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and Lion Industrial Portfolio Special
Servicer, Xxxxx Fargo Bank, National Association, as a Master Servicer, as
Certificate Administrator and as Tax Administrator, ARCap Servicing, Inc., as
General Special Servicer, LaSalle Bank National Association, as Trustee, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder. 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
F-2A-1
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 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
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The 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
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
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-PWR3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of March 18, 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 March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and Lion Industrial Portfolio Special
Servicer, Xxxxx Fargo Bank, National Association, as a Master Servicer, as
Certificate Administrator and as Tax Administrator, ARCap Servicing, Inc., as
General Special Servicer, LaSalle Bank National Association, as Trustee, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder. 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 Trustee 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 Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 18, 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 March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer and as Lion Industrial
Portfolio Special Servicer, Xxxxx Fargo Bank National Association, as a master
servicer, as certificate administrator and as tax administrator, ARCap
Servicing, Inc. as general special servicer, LaSalle Bank National Association
as trustee (the "Trustee"), ABN AMRO Bank N.V. as fiscal agent and The
Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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
F-2C-1
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 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 satisfactory to the Transferor 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,
F-2C-2
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. 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 (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 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 $______________________2 in
securities (other than the excluded securities referred to below) as of the
end of the Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Transferee satisfies the criteria
in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
___ 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 purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is 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 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 purchasing the Transferred
Yes No Certificates only for the Transferee's own
account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is 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 Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class __
Certificates having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of March 18, 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 March 1, 2004, among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor, Prudential Asset Resources,
Inc., as a master servicer and as Lion Industrial Portfolio Special Servicer,
Xxxxx Fargo Bank, National Association, as a master servicer, as certificate
administrator and tax administrator, ARCap Servicing, Inc., as general special
servicer, LaSalle Bank National Association, as trustee, ABN AMRO Bank N.V.,
as fiscal agent, and The Prudential Insurance Company of America, as Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder. 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
F-2D-1
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, 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 any
individual) resident in the United States, (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 Securities
Act, unless it is organized or incorporated, and owned, by "accredited
investors" (as defined in Rule 501(a)) under the United States Securities Act
of 1933, as amended (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 Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3 (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 March 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as
Lion Industrial Portfolio Special Servicer, Xxxxx Fargo Bank, National
Association, as a master servicer, as certificate administrator and as tax
administrator, ARCap Servicing, Inc., as general special servicer, LaSalle
Bank National Association, as trustee, ABN AMRO Bank N.V. as fiscal agent and
The Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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
F-3A-1
by means of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of 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 Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[APPLICABLE MASTER SERVICER]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3 (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 March 1, 2004 (the "Pooling and Servicing Agreement"),
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Prudential Asset Resources, Inc. as a master servicer and as
Lion Industrial Portfolio Special Servicer, Xxxxx Fargo Bank, National
Association, as a master servicer, as certificate administrator and as tax
administrator, ARCap Servicing, Inc., as general special servicer, LaSalle
Bank National Association, as trustee, ABN AMRO Bank N.V. as fiscal agent and
The Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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 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
F-3B-1
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 (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 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-PWR3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class
______ Certificates [having an initial aggregate Certificate
[Principal Balance] [Notional Amount] as of March 18, 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 March
1, 2004 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer and as Lion Industrial
Portfolio Special Servicer, Xxxxx Fargo Bank, National Association, as a
Master Servicer, as Certificate Administrator and as Tax Administrator, ARCap
Servicing, Inc., as General Special Servicer, LaSalle Bank National
Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent, and The
Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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
G-1-1
directly or indirectly purchasing the Transferred Certificates on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or
___ The Transferee is using funds from an insurance company general account
to acquire the Transferred Certificates, however, the purchase and
holding of such Certificates by such Person is 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 or 90-29), 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, either
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 Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, Class ____
Certificates [having an initial aggregate [Principal Balance]
[Notional Amount] as of March 18, 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 March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as Depositor, Prudential Asset
Resources, Inc., as a Master Servicer and Lion Industrial Portfolio Special
Servicer, Xxxxx Fargo Bank, National Association, as a Master Servicer, as
Certificate Administrator and Tax Administrator, ARCap Servicing, Inc., as
General Special Servicer, LaSalle Bank National Association, as Trustee, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder. 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, however, the
purchase and holding of such
G-2-1
interest by such Person is 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; 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 or 90-29), 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, either
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 Inc., Series
2004-PWR3 (the "Certificates") issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of March 1, 2004, among Bear Xxxxxxx Commercial Mortgage
Securities 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 and as Lion Industrial Portfolio Special
Servicer, ARCap Servicing, Inc. as General Special Servicer,
LaSalle Bank National Association as Trustee, ABN AMRO Bank N.V.
as Fiscal Agent and The Prudential Insurance Company of America,
as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder
--------------------------
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 [o]%
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)
H-1-1
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 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
H-1-2
_____ b) The Purchaser is a United States Person and the
consideration paid to the Purchaser for accepting the Class R Certificates is
greater than the present value of the 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.
H-1-3
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.
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-PWR3
[OR OTHER CERTIFICATE REGISTRAR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3, 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 March
1, 2004 among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer and Lion Industrial
Portfolio Special Servicer, Xxxxx Fargo Bank, National Association, as a
Master Servicer, as Certificate Administrator and as Tax Administrator, ARCap
Servicing, Inc., as General Special Servicer, LaSalle Bank National
Association, as Trustee, ABN AMRO Bank N.V., as Fiscal Agent, and The
Prudential Insurance Company of America, as Lion Industrial Portfolio
Non-Pooled Subordinate Noteholder. 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]
Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: __________________
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: __________________
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.26 of the
Pooling and Servicing Agreement, dated as of March 1, 2004 (the "Agreement")
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as Depositor,
Prudential Asset Resources, Inc., as a Master Servicer and as Lion Industrial
Portfolio Special Servicer, Xxxxx Fargo Bank, National Association, as a
Master Servicer, as Certificate Administrator and as Tax Administrator, ARCap
Servicing, Inc., as General Special Servicer, the undersigned as Trustee, ABN
AMRO Bank N.V., as Fiscal Agent, and The Prudential Insurance Company of
America, as Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, and
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3 (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 [Lion Industrial
Portfolio] [General] 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 [Lion Industrial Portfolio] [General] Special Servicer were to serve as
such, such event would not result in an Adverse Rating Event with respect to
I-1-1
any Class of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
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:
STANDARD & POOR'S RATINGS SERVICES, A
DIVISION OF THE XXXXXX-XXXX COMPANIES
By:
---------------------------------
Name:
Title:
Date:
FITCH, 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 SERVICERS (including the replaced Special Servicer)]
[Lion Industrial Portfolio Non-Pooled Subordinate Noteholder]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.26 of the Pooling and Servicing Agreement,
dated as of March 1, 2004 relating to Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2004-PWR3 (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as [Lion Industrial
Portfolio] [General] 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 [Lion Industrial Portfolio] [General]
Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section [2.07][2.08] of the
Agreement, with the following corrections with respect to type of entity and
jurisdiction of organization: ____________________.
-------------------------------------------
By:
---------------------------------------
Name:
Title:
I-2-1
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
Debtor:
Bear Xxxxxxx Commercial Mortgage Securities 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 Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR3
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust
Services Group--Bear Xxxxxxx Commercial Mortgage Securities Inc., 2004-PWR3
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 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 Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR3
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group--
Bear Xxxxxxx Commercial Mortgage Securities Inc., 2004-PWR3
Description of the Property Covered:
This Exhibit I is attached to and incorporated in a financing
statement pertaining to Bear Xxxxxxx Commercial Mortgage Securities 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-PWR3 Certificates (referred to as the "Secured
Party" for purposes of this financing statement only), under that certain
Pooling and Servicing Agreement, dated as of March 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") and special servicer for the Lion Industrial
Portfolio Loan Group (in such capacity, the "Lion Industrial Portfolio Special
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 for all of the
mortgage loans other than the Lion Industrial Portfolio Loan Group (in such
capacity, the "General Special Servicer"), ABN AMRO Bank N.V. as fiscal agent,
and The Prudential Insurance Company of America, as Lion Industrial Portfolio
non-pooled subordinate noteholder, relating to the issuance of the Debtor's
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR3 (collectively,
the "Series 2004-PWR3 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 Schedule of Mortgage
Loans to the Pooling and Servicing Agreement, as the same may
be updated from time to time,
J-2
which Schedule of Mortgage Loans 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");
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 Servicers 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 Servicers
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,
J-3
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;
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 Servicer 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
J-4
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 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 Schedule I]
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 Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
---------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Lion Industrial Portfolio Special Servicer,
Xxxxx Fargo Bank, National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, ARCap Servicing, Inc., as General
Special Servicer, LaSalle Bank National Association, as Trustee, ABN AMRO Bank
N.V., as Fiscal Agent, and The Prudential Insurance Company of America, as
Lion Industrial Portfolio Non-Pooled Subordinate Noteholder, with respect to
the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR3 (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.
K-1-1
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 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 (collectively, the "Representatives") in any
manner whatsoever, in whole or in part; provided that the
undersigned may provide all or any part of the Information to
any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep
it confidential; and provided that the undersigned may provide
all or any part of the Information to its auditors, legal
counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of
the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended, or would
require registration of any Non-Registered Certificate (as
defined in the Pooling and Servicing Agreement) pursuant to
Section 5 of the Securities Act.
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 Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated as of
March 1, 2004 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc., as Depositor, Prudential Asset Resources,
Inc., as a Master Servicer and as Lion Industrial Portfolio Special Servicer,
Xxxxx Fargo Bank, National Association, as a Master Servicer, as Certificate
Administrator and as Tax Administrator, ARCap Servicing, Inc., as General
Special Servicer, LaSalle Bank National Association, as Trustee, ABN AMRO Bank
N.V., as Fiscal Agent and The Prudential Insurance Company of America, as Lion
Industrial Portfolio Non-Pooled Subordinate Noteholder, with respect to the
Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR3 (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
K-2-1
confidential (except from such outside persons as are assisting
it in making the investment decision described in paragraph 1),
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 (collectively, the "Representatives")
in any manner whatsoever, in whole or in part; provided that in
the event the undersigned purchases any Certificate or any
interest in any Certificate, the undersigned may provide all or
any part of the Information to any other person or entity that
holds or is contemplating the purchase of any Certificate or
interest therein, but only if such person or entity confirms in
writing such ownership interest or prospective ownership
interest and agrees to keep it confidential; and provided that
the undersigned may provide all or any part of the Information
to its auditors, legal counsel and regulators.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of
the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended, or would
require registration of any Non-Registered Certificate (as
defined in the Pooling and Servicing Agreement) 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
Inc., Commercial Mortgage Pass-Through Certificates, Series 2004-PWR3
("Trustee"), under that certain Pooling and Servicing Agreement dated as of
March 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 Inc., Commercial Mortgage
Pass-Through Certificates, Series 2004-PWR3
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]
[Lion Industrial portfolio Non-Pooled Subordinate Noteholder]
[Controlling Class Representative]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2004-PWR3
------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02(b) of that certain Pooling and
Servicing Agreement dated as of March 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 Loans) and (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.
Capitalized terms used but not defined herein shall have the meanings
given them in the Pooling and Servicing Agreement.
N-1
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: Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
From: [PAR] [WFB], in its capacity as a Master Servicer (a "Master
Servicer") under the Pooling and Servicing Agreement dated as of
March 1, 2004 (the "Pooling and Servicing Agreement"), among
[PAR][WFB] as Master Servicer, Bear Xxxxxxx Commercial Mortgage
Securities Inc. as Depositor, [PAR] [WFB] as a Master Servicer, as
Certificate Administrator and as Tax Administrator, Prudential Asset
Resources, Inc. as Lion Industrial Portfolio Special Servicer, ARCap
Servicing, Inc. as General Special Servicer, LaSalle Bank National
Association as Trustee, ABN AMRO N.V. as Fiscal Agent and The
Prudential Insurance Company of America, as Lion Industrial
Portfolio Non-Pooled Subordinate Noteholder.
Date: _________, 20___
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2004-PWR3
Mortgage loan (the "Mortgage Loan") identified by loan number _____
on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule by the following
names:____________________
--------------------
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to
such terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
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 Principal Balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be
due in respect of a portion of the Principal Balance
of the Mortgage Loan that represents ___% of the
entire Principal Balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan amount of
$____________ or _______% of the entire Principal
Balance;
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 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 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 pool. The entire Principal Balance of the Mortgage
Loan as of the date of defeasance was $_____________
[$20,000,000 or less or less than five percent of 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
Certificateholder Report received by us (the "Current
Report").
l. The defeasance described herein, together with all prior
and simultaneous defeasances of Mortgage Loans, brings the
total of all fully and partially defeased Mortgage Loans
to $__________________, which is _____% of the Aggregate
Certificate Balance of the Certificates as of the date of
the Current Report.
O-4
3. Certify that, in addition to the foregoing, 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
SCHEDULE I-A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
S-I-A-1
ID Seller Loan Number Property Name Address City
------ ------------------ ------------------------------ ----------------------------------------- ------------------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio Various Various
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxx
0x.0 6105270 - 2 Kingston Ct. Bus. Park # 2 4041 and 0000 Xxxxxxxx Xxxxx Xxxxxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 0000, 0000 and 0000 Xxxxxxxx Xxxxx Xxxxxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 0000 Xxxxxxxx Court Marietta
1a.5 6105270 - 5 Peachtree 8 & 9 5824 & 5834 Peachtree Industrial Bldg Norcross
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road) 0 Xxxxxx Xxxx Xxxxxxxxxxxx
1a.7 6105270 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx 000 Xxxxxx Xx. Xxxx Xxxxxxxxxxx
Xx.)
0x.0 6105270 - 8 South Shore Dist (Office) 000 Xxxxxx Xx. (Xxxxxx) Xxxx Xxxxxxxxxxx
0x.0 6105270 - 9 Xxxxx Station 400 Block Exchange Parkway Xxxxx
1a.10 6105270 - 10 Peachtree Center 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
0x.00 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 0000-0000 Xxxx Xxxxxx Garland
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Xxxxxx H) 801, 000, 000 Xxxxxx X Xxxx Xxxxxxxxx
1a.13 6105270 - 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000-0000 000xx Xxxxxx Grand Prairie
1a.14 6105270 - 14 Central 1, 2 000-000 X. 0xx Xx. Xxxxxxx
1a.15 6105270 - 15 Xxxx Creek Xxxx. 0 0000 X. Xxxxxx Xxxx Xxxx Xxxxxxx
1a.16 6105270 - 16 Eastport 1, 3 0000-0000 Xxxxxx Xxxxxx / 0000-0000 Xxxxxx Xxxxxxx
Xxxxxx
1a.17 6105270 - 17 Westpark 1, 2 0000-0000 Xxxxxxxx Xxxxx / 8750-8768 Houston
Xxxxxxxx Xxxxx
0x.00 0000000 - 00 Xxxxxxxx 3, 4 0000-0000 Xxxxxxxx Xxxxx / 0000-0000 Xxxxxxx
Xxxxxxxx Xxxxx
1a.19 6105270 - 00 Xxxxxxx XXX 00xx Xxxxxx xxx Xxxxxxx Xxxxxxx
1a.20 6105270 - 00 Xxxxxxxxx XXX 00xx Xxxxxx and Xxxxxxxx Drive Lenexa
1a.21 6105270 - 21 Xxxxxxxxx XX 00xx Xxxxxx and Xxxxxxxx Drive Lenexa
1a.22 6105270 - 22 Irwindale PH 1 - Building 6 0000 0xx Xxxxxx Xxxxxxxxx
1a.23 6105270 - 23 Irwindale PH 1 - Building 7 0000 0xx Xxxxxx Xxxxxxxxx
1a.24 6105270 - 24 Irwindale PH 1 - Building 8 0000 0xx Xxxxxx Xxxxxxxxx
1a.25 6105270 - 25 Irwindale PH 1 - Building 10 0000 0xx Xxxxxx Xxxxxxxxx
1a.26 6105270 - 26 Irwindale PH 1 - Building 12 15751-15759 Xxxxx Street Irwindale
1a.27 6105270 - 27 Irwindale PH 1 - Building 13 15761-15861 Xxxxx Street Irwindale
1a.28 6105270 - 28 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Ave Irwindale
1a.29 6105270 - 29 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Avenue Irwindale
1a.30 6105270 - 30 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Avenue Irwindale
1a.31 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 00000 Xxxxx Street Irwindale
1a.32 6105270 - 32 Irwindale PH 2 - Building 20 0000 Xxxxxxx Xxxxxx / 0000-0000 0xx Xxxxxx Irwindale
1a.33 6105270 - 33 Irwindale PH 2 - Building 21 0000 0xx Xxxxxx Xxxxxxxxx
1a.34 6105270 - 34 Irwindale PH 2 - Building 22 0000 0xx Xxxxxx Xxxxxxxxx
1a.35 6105270 - 35 Irwindale PH 2 - Building 23 0000 0xx Xxxxxx Xxxxxxxxx
1a.36 6105270 - 36 Xxxxxxx Xxxxx # 0 00000 Xxxxxxxxx Xxxxxxx Jeffersontown
1a.37 6105270 - 37 Xxxxxxx Xxxxx # 0 00000 Xxxxxxxxx Xxxxxxx Jeffersontown
1a.38 6105270 - 38 Xxxxxxx Xxxxx # 0 00000 Xxxxxxxxx Xxxxxxx Jeffersontown
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 11301-11399 Decimal Drive Jeffersontown
1a.40 6105270 - 40 1734 Centennial #1 1734 Centennial Drive San Antonio
Original Cut-off Date P&I Monthly
ID Seller Loan Number Property Name State Zip Code Balance Balance Debt Service
------ ------------------ ------------------------------ --------- ------------ ------------ -------------- --------------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio Various Various 68,393,600 68,393,600 NAP
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000 702,207 702,207
1a.2 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 845,924 845,924
1a.3 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 1,162,311 1,162,311
1a.4 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 153,693 153,693
1a.5 6105270 - 0 Xxxxxxxxx 0 & 0 XX 00000 1,742,974 1,742,974
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Xxxx) XX 00000 1,102,440 1,102,440
1a.7 6105270 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx XX 00000 3,845,250 3,845,250
St.)
1a.8 6105270 - 0 Xxxxx Xxxxx Xxxx (Xxxxxx) XX 00000 548,642 548,642
1a.9 6105270 - 0 Xxxxx Xxxxxxx XX 00000 3,600,110 3,600,110
1a.10 6105270 - 10 Xxxxxxxxx Xxxxxx XX 00000 3,209,341 3,209,341
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 XX 00000 632,140 632,140
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Xxxxxx X) XX 00000 1,010,106 1,010,106
1a.13 6105270 - 00 Xxxxxxxxx Xxxxxxxx Xxxx XX 00000 1,016,957 1,016,957
1a.14 6105270 - 00 Xxxxxxx 0, 0 XX 00000 1,641,126 1,641,126
1a.15 6105270 - 00 Xxxx Xxxxx Xxxx. 0 XX 00000 2,116,683 2,116,683
1a.16 6105270 - 00 Xxxxxxxx 0, 0 XX 00000 2,933,126 2,933,126
1a.17 6105270 - 00 Xxxxxxxx 0, 0 XX 00000 1,248,649 1,248,649
1a.18 6105270 - 00 Xxxxxxxx 0, 0 XX 00000 1,165,525 1,165,525
1a.19 6105270 - 00 Xxxxxxx XXX XX 00000 1,792,723 1,792,723
1a.20 6105270 - 20 Xxxxxxxxx XXX XX 00000 3,386,658 3,386,658
1a.21 6105270 - 00 Xxxxxxxxx XX XX 00000 1,345,075 1,345,075
1a.22 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 4,483,712 4,483,712
1a.23 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 2,179,661 2,179,661
1a.24 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 756,111 756,111
1a.25 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 2,246,760 2,246,760
1a.26 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,520,652 1,520,652
1a.27 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 3,286,349 3,286,349
1a.28 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 845,157 845,157
1a.29 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 753,960 753,960
1a.30 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,784,801 1,784,801
1a.31 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,307,187 1,307,187
1a.32 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 2,038,484 2,038,484
1a.33 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 3,786,899 3,786,899
1a.34 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 859,584 859,584
1a.35 6105270 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,325,199 1,325,199
1a.36 6105270 - 00 Xxxxxxx Xxxxx # 0 XX 00000 521,607 521,607
1a.37 6105270 - 00 Xxxxxxx Xxxxx # 0 XX 00000 669,710 669,710
1a.38 6105270 - 00 Xxxxxxx Xxxxx # 0 XX 00000 1,047,264 1,047,264
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 XX 00000 514,129 514,129
1a.40 6105270 - 40 0000 Xxxxxxxxxx #0 XX 00000 649,357 649,357
IO Monthly Mortgage Interest Accrual
ID Seller Loan Number Property Name Debt Service Rate Basis
------ ------------------ ------------------------------ ------------------ ----------------- -------------------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio 242,797.28 4.2600% 30/360
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 4 Kingston Ct. Bus. Park # 4
1a.5 6105270 - 5 Peachtree 8 & 9
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road)
1a.7 6105270 - 7 South Shore Dist (140 Xxxxxx
Xx.)
0x.0 0000000 - 0 Xxxxx Xxxxx Dist (Office)
1a.9 6105270 - 9 Xxxxx Station
1a.10 6105270 - 10 Peachtree Center
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Avenue H)
1a.13 6105270 - 13 Woodlands Business Park
1a.14 6105270 - 14 Central 1, 2
1a.15 6105270 - 15 Xxxx Creek Xxxx. 0
1a.16 6105270 - 16 Eastport 1, 3
1a.17 6105270 - 17 Westpark 1, 2
1a.18 6105270 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1a.20 6105270 - 20 Xxxxxxxxx III
1a.21 6105270 - 21 Xxxxxxxxx IV
1a.22 6105270 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1a.24 6105270 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1a.26 6105270 - 26 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 13
1a.28 6105270 - 28 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 15
1a.30 6105270 - 30 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.31 6105270 - 31 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 20
1a.33 6105270 - 33 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22
1a.35 6105270 - 35 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.36 6105270 - 36 Decimal Point # 1
1a.37 6105270 - 37 Decimal Point # 3
1a.38 6105270 - 38 Decimal Point # 4
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
1a.40 6105270 - 40 1734 Centennial #1
Stated
Remaining
Original Term to Term to
ARD Loan Maturity Date Maturity or ARD Maturity or
ID Seller Loan Number Property Name (Y/N) or ARD (mos.) ARD (mos.)
-------- ------------------ ----------------------------- ------------ -------------- ------------------ ------------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio No 1/1/2009 60 58
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 4 Kingston Ct. Bus. Park # 4
1a.5 6105270 - 5 Peachtree 8 & 9
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road)
1a.7 6105270 - 7 South Shore Dist (140 Xxxxxx
Xx.)
0x.0 0000000 - 0 Xxxxx Xxxxx Dist (Office)
1a.9 6105270 - 9 Xxxxx Station
1a.10 6105270 - 10 Peachtree Center
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Avenue H)
1a.13 6105270 - 13 Woodlands Business Park
1a.14 6105270 - 14 Central 1, 2
1a.15 6105270 - 15 Xxxx Creek Xxxx. 0
1a.16 6105270 - 16 Eastport 1, 3
1a.17 6105270 - 17 Westpark 1, 2
1a.18 6105270 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1a.20 6105270 - 20 Xxxxxxxxx III
1a.21 6105270 - 21 Xxxxxxxxx IV
1a.22 6105270 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1a.24 6105270 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1a.26 6105270 - 26 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 13
1a.28 6105270 - 28 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 15
1a.30 6105270 - 30 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 19
1a.32 6105270 - 32 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 21
1a.34 6105270 - 34 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 23
1a.36 6105270 - 36 Decimal Point # 1
1a.37 6105270 - 37 Decimal Point # 3
1a.38 6105270 - 38 Decimal Point # 4
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
1a.40 6105270 - 40 1734 Centennial #1
Crossed
Original Remaining With
Amortization Amortization Other
ID Seller Loan Number Property Name Term (mos.) Term (mos.) Loans
-------- ------------------ ----------------------------- -------------- --------------------- ---------------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio 0 0 Yes
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx NO
1a.2 6105270 - 2 Kingston Ct. Bus. Park # 2 NO
1a.3 6105270 - 3 Kingston Ct. Bus. Park # 3 NO
1a.4 6105270 - 4 Kingston Ct. Bus. Park # 4 NO
1a.5 6105270 - 5 Peachtree 8 & 9 NO
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road) NO
1a.7 6105270 - 7 South Shore Dist (140 Laurel NO
St.)
1a.8 6105270 - 8 South Shore Dist (Office) NO
1a.9 6105270 - 9 Xxxxx Station NO
1a.10 6105270 - 10 Peachtree Center NO
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 NO
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Xxxxxx H) NO
1a.13 6105270 - 13 Woodlands Business Park NO
1a.14 6105270 - 14 Central 1, 2 NO
1a.15 6105270 - 15 Xxxx Creek Bldg. 1 NO
1a.16 6105270 - 16 Eastport 1, 3 NO
1a.17 6105270 - 17 Westpark 1, 2 NO
1a.18 6105270 - 18 Xxxxxxxx 0, 0 XX
0x.00 0000000 - 00 Xxxxxxx III NO
1a.20 6105270 - 20 Xxxxxxxxx III NO
1a.21 6105270 - 21 Xxxxxxxxx IV NO
1a.22 6105270 - 22 Irwindale PH 1 - Building 6 NO
1a.23 6105270 - 23 Irwindale PH 1 - Building 7 NO
1a.24 6105270 - 24 Irwindale PH 1 - Building 8 NO
1a.25 6105270 - 25 Irwindale PH 1 - Building 10 NO
1a.26 6105270 - 26 Irwindale PH 1 - Building 12 NO
1a.27 6105270 - 27 Irwindale PH 1 - Building 13 NO
1a.28 6105270 - 28 Irwindale PH 1 - Building 14 NO
1a.29 6105270 - 29 Irwindale PH 1 - Building 15 NO
1a.30 6105270 - 30 Irwindale PH 2 - Building 18 NO
1a.31 6105270 - 31 Irwindale PH 2 - Building 19 NO
1a.32 6105270 - 32 Irwindale PH 2 - Building 20 NO
1a.33 6105270 - 33 Irwindale PH 2 - Building 21 NO
1a.34 6105270 - 34 Irwindale PH 2 - Building 22 NO
1a.35 6105270 - 35 Irwindale PH 2 - Building 23 NO
1a.36 6105270 - 36 Decimal Point # 1 NO
1a.37 6105270 - 37 Decimal Point # 3 NO
1a.38 6105270 - 38 Decimal Point # 4 NO
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 NO
1a.40 6105270 - 40 1734 Centennial #1 NO
Prepayment Provisions (# of
ID Seller Loan Number Property Name Crossed Loan ID payments) Interest
-------- ------------------ ----------------------------- -------------------- ---------------------------------- --------
1 6105270 & 6105271 Lion Industrial Portfolio
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio 1b Greater of: 1% of Tranche A balance Fee
5-Year outstanding x (months remaining on
the A Tranche/60) + 1% of the B
Tranche balance outstanding x (months
remaining on the B Tranche/84) and
YM(59)/OPEN(1)
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx Xxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 Fee
1a.3 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 Fee
1a.4 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 Fee
1a.5 6105270 - 5 Peachtree 8 & 9 Fee
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road) Fee
1a.7 6105270 - 7 South Shore Dist (140 Laurel Fee
St.)
1a.8 6105270 - 8 South Shore Dist (Office) Fee
1a.9 6105270 - 9 Xxxxx Station Fee
1a.10 6105270 - 10 Peachtree Center Fee
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 Fee
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Xxxxxx H) Fee
1a.13 6105270 - 13 Woodlands Business Park Fee
1a.14 6105270 - 14 Central 1, 2 Fee
1a.15 6105270 - 00 Xxxx Xxxxx Xxxx. 1 Fee
1a.16 6105270 - 16 Eastport 1, 3 Fee
1a.17 6105270 - 17 Westpark 1, 2 Fee
1a.18 6105270 - 18 Xxxxxxxx 0, 0 Xxx
0x.00 0000000 - 00 Xxxxxxx III Fee
1a.20 6105270 - 20 Xxxxxxxxx III Fee
1a.21 6105270 - 21 Xxxxxxxxx IV Fee
1a.22 6105270 - 22 Irwindale PH 1 - Building 6 Fee
1a.23 6105270 - 23 Irwindale PH 1 - Building 7 Fee
1a.24 6105270 - 24 Irwindale PH 1 - Building 8 Fee
1a.25 6105270 - 25 Irwindale PH 1 - Building 10 Fee
1a.26 6105270 - 26 Irwindale PH 1 - Building 12 Fee
1a.27 6105270 - 27 Irwindale PH 1 - Building 13 Fee
1a.28 6105270 - 28 Irwindale PH 1 - Building 14 Fee
1a.29 6105270 - 29 Irwindale PH 1 - Building 15 Fee
1a.30 6105270 - 30 Irwindale PH 2 - Building 18 Fee
1a.31 6105270 - 31 Irwindale PH 2 - Building 19 Fee
1a.32 6105270 - 32 Irwindale PH 2 - Building 20 Fee
1a.33 6105270 - 33 Irwindale PH 2 - Building 21 Fee
1a.34 6105270 - 34 Irwindale PH 2 - Building 22 Fee
1a.35 6105270 - 35 Irwindale PH 2 - Building 23 Fee
1a.36 6105270 - 36 Decimal Point # 1 Fee
1a.37 6105270 - 37 Decimal Point # 3 Fee
1a.38 6105270 - 38 Decimal Point # 4 Fee
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 Fee
1a.40 6105270 - 40 1734 Centennial #1 Fee
Administrative Due
ID Seller Loan Number Property Name Loan Seller Fee Rate Date Grace Period
------- ------------------ ------------------------ -------------- -------------- ------ --------------
1 6105270 & 6105271 Lion Industrial Portfolio PMCF 0.0329%
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio PMCF 0.0329% 1st 0
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx XXXX
1a.2 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
1a.3 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
1a.4 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
1a.5 6105270 - 5 Peachtree 8 & 9 PMCF
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road) PMCF
1a.7 6105270 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx XXXX
Xx.)
0x.0 6105270 - 8 South Shore Dist (Office) PMCF
1a.9 6105270 - 9 Xxxxx Station PMCF
1a.10 6105270 - 10 Peachtree Center PMCF
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 XXXX
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Xxxxxx H) PMCF
1a.13 6105270 - 13 Woodlands Business Park PMCF
1a.14 6105270 - 14 Central 1, 2 PMCF
1a.15 6105270 - 00 Xxxx Xxxxx Xxxx. 1 PMCF
1a.16 6105270 - 16 Eastport 1, 3 PMCF
1a.17 6105270 - 17 Westpark 1, 2 PMCF
1a.18 6105270 - 18 Xxxxxxxx 0, 0 XXXX
0x.00 0000000 - 00 Xxxxxxx III PMCF
1a.20 6105270 - 20 Xxxxxxxxx III PMCF
1a.21 6105270 - 21 Xxxxxxxxx IV PMCF
1a.22 6105270 - 22 Irwindale PH 1 - Building 6 PMCF
1a.23 6105270 - 23 Irwindale PH 1 - Building 7 PMCF
1a.24 6105270 - 24 Irwindale PH 1 - Building 8 PMCF
1a.25 6105270 - 25 Irwindale PH 1 - Building 10 PMCF
1a.26 6105270 - 26 Irwindale PH 1 - Building 12 PMCF
1a.27 6105270 - 27 Irwindale PH 1 - Building 13 PMCF
1a.28 6105270 - 28 Irwindale PH 1 - Building 14 PMCF
1a.29 6105270 - 29 Irwindale PH 1 - Building 15 PMCF
1a.30 6105270 - 30 Irwindale PH 2 - Building 18 PMCF
1a.31 6105270 - 31 Irwindale PH 2 - Building 19 PMCF
1a.32 6105270 - 32 Irwindale PH 2 - Building 20 PMCF
1a.33 6105270 - 33 Irwindale PH 2 - Building 21 PMCF
1a.34 6105270 - 34 Irwindale PH 2 - Building 22 PMCF
1a.35 6105270 - 35 Irwindale PH 2 - Building 23 PMCF
1a.36 6105270 - 36 Decimal Point # 1 PMCF
1a.37 6105270 - 37 Decimal Point # 3 PMCF
1a.38 6105270 - 38 Decimal Point # 4 PMCF
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 XXXX
1a.40 6105270 - 40 1734 Centennial #1 PMCF
Guarantor/
ID Seller Loan Number Property Name Letter of Credit Letter of Credit Description Recourse
------- ------------------ ------------------------ ------------------ --------------------------------- ------------
1 6105270 & 6105271 Lion Industrial Portfolio NO YES
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio NO YES
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 4 Kingston Ct. Bus. Park # 4
1a.5 6105270 - 5 Peachtree 8 & 9
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road)
1a.7 6105270 - 7 South Shore Dist (140 Xxxxxx
Xx.)
0x.0 0000000 - 0 Xxxxx Xxxxx Dist (Office)
1a.9 6105270 - 9 Xxxxx Station
1a.10 6105270 - 10 Peachtree Center
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Avenue H)
1a.13 6105270 - 13 Woodlands Business Park
1a.14 6105270 - 14 Central 1, 2
1a.15 6105270 - 15 Xxxx Creek Xxxx. 0
1a.16 6105270 - 16 Eastport 1, 3
1a.17 6105270 - 17 Westpark 1, 2
1a.18 6105270 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1a.20 6105270 - 20 Xxxxxxxxx III
1a.21 6105270 - 21 Xxxxxxxxx IV
1a.22 6105270 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1a.24 6105270 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1a.26 6105270 - 26 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.27 6105270 - 27 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 14
1a.29 6105270 - 29 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.30 6105270 - 30 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 19
1a.32 6105270 - 32 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 21
1a.34 6105270 - 34 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 23
1a.36 6105270 - 36 Decimal Point # 1
1a.37 6105270 - 37 Decimal Point # 3
1a.38 6105270 - 38 Decimal Point # 4
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
1a.40 6105270 - 40 1734 Centennial #1
Hospitality Initial Master
ID Seller Loan Number Property Name Property Servicer
------- ------------------ ------------------------ ------------- -------------
1 6105270 & 6105271 Lion Industrial Portfolio NO PAR
Pooled Mortgage Loans
1a 6105270 Lion Industrial Portfolio NO PAR
5-Year
1a.1 6105270 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0
0x.0 6105270 - 4 Kingston Ct. Bus. Park # 4
1a.5 6105270 - 5 Peachtree 8 & 9
1a.6 6105270 - 6 Recall Bts (Five Xxxxxx Road)
1a.7 6105270 - 7 South Shore Dist (140 Xxxxxx
Xx.)
0x.0 0000000 - 0 Xxxxx Xxxxx Dist (Office)
1a.9 6105270 - 9 Xxxxx Station
1a.10 6105270 - 10 Peachtree Center
1a.11 6105270 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1a.12 6105270 - 00 Xxxxxxx Xxxxx (Avenue H)
1a.13 6105270 - 13 Woodlands Business Park
1a.14 6105270 - 14 Central 1, 2
1a.15 6105270 - 15 Xxxx Creek Xxxx. 0
1a.16 6105270 - 16 Eastport 1, 3
1a.17 6105270 - 17 Westpark 1, 2
1a.18 6105270 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1a.20 6105270 - 20 Xxxxxxxxx III
1a.21 6105270 - 21 Xxxxxxxxx IV
1a.22 6105270 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1a.24 6105270 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1a.26 6105270 - 26 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.27 6105270 - 27 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 14
1a.29 6105270 - 29 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 18
1a.31 6105270 - 31 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 20
1a.33 6105270 - 33 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22
1a.35 6105270 - 35 Xxxxxxxxx XX 0 - Xxxxxxxx 00
1a.36 6105270 - 36 Decimal Point # 1
1a.37 6105270 - 37 Decimal Point # 3
1a.38 6105270 - 38 Decimal Point # 4
1a.39 6105270 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
1a.40 6105270 - 40 1734 Centennial #1
ID Seller Loan Number Property Name Address City
--------- ------------------ ----------------------------- -------------------------------------- ---------------------
1a.41 6105270 - 41 1734 Centennial #2 1734 Centennial Drive San Antonio
1a.42 6105270 - 42 1734 Centennial #3 1734 Centennial Drive San Antonio
1a.43 6105270 - 43 Network Tech Center III (Data 12401 Network Blvd. San Antonio
Tech)
1b 6105271 Lion Industrial Portfolio Various Various
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2 4041 and 0000 Xxxxxxxx Xxxxx Xxxxxxxx
0x.0 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 0000, 0000 and 0000 Xxxxxxxx Xxxxx Xxxxxxxx
0x.0 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 0000 Xxxxxxxx Court Marietta
1b.5 6105271 - 5 Peachtree 8 & 9 5824 & 5834 Peachtree Industrial Bldg Norcross
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road) 0 Xxxxxx Xxxx Xxxxxxxxxxxx
0x.0 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx 000 Xxxxxx Xx. Xxxx Xxxxxxxxxxx
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office) 000 Xxxxxx Xx. (Xxxxxx) Xxxx Xxxxxxxxxxx
0x.0 6105271 - 9 Xxxxx Station 400 Block Exchange Parkway Xxxxx
1b.10 6105271 - 10 Peachtree Center 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxx
0x.00 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 0000-0000 Xxxx Xxxxxx Garland
1b.12 6105271 - 00 Xxxxxxx Xxxxx (Xxxxxx H) 000, 000, 000 Xxxxxx X Xxxx Xxxxxxxxx
0x.00 6105271 - 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000-0000 000xx Xxxxxx Xxxxx Xxxxxxx
1b.14 6105271 - 14 Central 1, 2 000-000 X. 0xx Xx. Xxxxxxx
0x.00 6105271 - 00 Xxxx Xxxxx Xxxx. 1 8708 W. Little York Road Houston
1b.16 6105271 - 16 Eastport 1, 3 0000-0000 Xxxxxx Xxxxxx / 0000-0000 Xxxxxx Xxxxxxx
Xxxxxx
1b.17 6105271 - 17 Westpark 1, 2 0000-0000 Xxxxxxxx Xxxxx / 8750-8768 Houston
Xxxxxxxx Xxxxx
0x.00 0000000 - 00 Xxxxxxxx 3, 4 0000-0000 Xxxxxxxx Xxxxx / 8710-8728 Houston
Westpark Drive
1b.19 6105271 - 00 Xxxxxxx XXX 00xx Xxxxxx xxx Xxxxxxx Xxxxxxx
1b.20 6105271 - 00 Xxxxxxxxx XXX 00xx Xxxxxx and Xxxxxxxx Drive Lenexa
1b.21 6105271 - 21 Xxxxxxxxx XX 00xx Xxxxxx and Xxxxxxxx Drive Lenexa
1b.22 6105271 - 22 Irwindale PH 1 - Building 6 0000 0xx Xxxxxx Xxxxxxxxx
1b.23 6105271 - 23 Irwindale PH 1 - Building 7 0000 0xx Xxxxxx Xxxxxxxxx
1b.24 6105271 - 24 Irwindale PH 1 - Building 8 0000 0xx Xxxxxx Xxxxxxxxx
1b.25 6105271 - 25 Irwindale PH 1 - Building 10 0000 0xx Xxxxxx Xxxxxxxxx
1b.26 6105271 - 26 Irwindale PH 1 - Building 12 15751-15759 Xxxxx Street Irwindale
1b.27 6105271 - 27 Irwindale PH 1 - Building 13 15761-15861 Xxxxx Street Irwindale
1b.28 6105271 - 28 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Ave Irwindale
1b.29 6105271 - 29 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Avenue Irwindale
1b.30 6105271 - 30 Irwindale XX 0 - Xxxxxxxx 00 0000 Xxxxxxxxx Avenue Irwindale
1b.31 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 00000 Xxxxx Street Irwindale
1b.32 6105271 - 32 Irwindale PH 2 - Building 20 0000 Xxxxxxx Xxxxxx / 0000-0000 0xx Xxxxxx Irwindale
1b.33 6105271 - 33 Irwindale PH 2 - Building 21 0000 0xx Xxxxxx Xxxxxxxxx
1b.34 6105271 - 34 Irwindale PH 2 - Building 22 0000 0xx Xxxxxx Xxxxxxxxx
1b.35 6105271 - 35 Irwindale PH 2 - Building 23 0000 0xx Xxxxxx Xxxxxxxxx
1b.36 6105271 - 36 Decimal Point # 1 11300 Bluegrass Parkway Jeffersontown
1b.37 6105271 - 37 Decimal Point # 3 11450 Bluegrass Parkway Jeffersontown
1b.38 6105271 - 38 Decimal Point # 4 11492 Bluegrass Parkway Jeffersontown
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 11301-11399 Decimal Drive Jeffersontown
Original Cut-off Date P&I Monthly
ID Seller Loan Number Property Name State Zip Code Balance Balance Debt Service
--------- ------------------ ----------------------------- --------- ---------- ------------ ------------ -------------
1a.41 6105270 - 41 0000 Xxxxxxxxxx #0 XX 00000 909,534 909,534
1a.42 6105270 - 42 0000 Xxxxxxxxxx #0 XX 00000 1,006,485 1,006,485
1a.43 6105270 - 00 Xxxxxxx Xxxx Xxxxxx XXX (Xxxx XX 00000 699,339 699,339
Tech)
1b 6105271 Lion Industrial Portfolio Various Various 24,406,400 24,406,400 127,131.88
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000 250,584 250,584
1b.2 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 301,870 301,870
1b.3 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 414,773 414,773
1b.4 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XX 00000 54,846 54,846
1b.5 6105271 - 0 Xxxxxxxxx 0 & 0 XX 00000 621,984 621,984
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Xxxx) XX 00000 393,408 393,408
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx XX 00000 1,372,186 1,372,186
St.)
1b.8 6105271 - 0 Xxxxx Xxxxx Xxxx (Xxxxxx) XX 00000 195,784 195,784
1b.9 6105271 - 0 Xxxxx Xxxxxxx XX 00000 1,284,707 1,284,707
1b.10 6105271 - 10 Xxxxxxxxx Xxxxxx XX 00000 1,145,260 1,145,260
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 XX 00000 225,580 225,580
1b.12 6105271 - 00 Xxxxxxx Xxxxx (Xxxxxx X) XX 00000 360,459 360,459
1b.13 6105271 - 00 Xxxxxxxxx Xxxxxxxx Xxxx XX 00000 362,903 362,903
1b.14 6105271 - 00 Xxxxxxx 0, 0 XX 00000 585,639 585,639
1b.15 6105271 - 00 Xxxx Xxxxx Xxxx. 0 XX 00000 755,343 755,343
1b.16 6105271 - 00 Xxxxxxxx 0, 0 XX 00000 1,046,692 1,046,692
1b.17 6105271 - 00 Xxxxxxxx 0, 0 XX 00000 445,583 445,583
1b.18 6105271 - 00 Xxxxxxxx 0, 0 XX 00000 415,920 415,920
1b.19 6105271 - 00 Xxxxxxx XXX XX 00000 639,737 639,737
1b.20 6105271 - 20 Xxxxxxxxx XXX XX 00000 1,208,536 1,208,536
1b.21 6105271 - 00 Xxxxxxxxx XX XX 00000 479,993 479,993
1b.22 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 1,600,022 1,600,022
1b.23 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 777,817 777,817
1b.24 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 0 XX 00000 269,820 269,820
1b.25 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 801,761 801,761
1b.26 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 542,648 542,648
1b.27 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,172,741 1,172,741
1b.28 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 301,596 301,596
1b.29 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 269,052 269,052
1b.30 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 636,910 636,910
1b.31 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 466,472 466,472
1b.32 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 727,437 727,437
1b.33 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 1,351,363 1,351,363
1b.34 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 306,744 306,744
1b.35 6105271 - 00 Xxxxxxxxx XX 0 - Xxxxxxxx 00 XX 00000 472,900 472,900
1b.36 6105271 - 00 Xxxxxxx Xxxxx # 0 XX 00000 186,137 186,137
1b.37 6105271 - 00 Xxxxxxx Xxxxx # 0 XX 00000 238,988 238,988
1b.38 6105271 - 00 Xxxxxxx Xxxxx # 0 XX 00000 373,719 373,719
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 XX 00000 183,468 183,468
IO Monthly Mortgage Interest Accrual
ID Seller Loan Number Property Name Debt Service Rate Basis
--------- ------------------ ----------------------------- --------------- ---------- -------------------
1a.41 6105270 - 41 1734 Centennial #2
1a.42 6105270 - 42 1734 Centennial #3
1a.43 6105270 - 43 Network Tech Center III (Data
Tech)
1b 6105271 Lion Industrial Portfolio 96,405.28 4.7400% 30/360
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4
1b.5 6105271 - 5 Peachtree 8 & 9
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road)
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office)
1b.9 6105271 - 9 Xxxxx Station
1b.10 6105271 - 10 Peachtree Center
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1b.12 6105271 - 12 Parkway Plaza (Avenue H)
1b.13 6105271 - 13 Woodlands Business Park
1b.14 6105271 - 14 Central 1, 2
1b.15 6105271 - 15 Xxxx Creek Xxxx. 0
1b.16 6105271 - 16 Eastport 1, 3
1b.17 6105271 - 17 Westpark 1, 2
1b.18 6105271 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1b.20 6105271 - 20 Xxxxxxxxx III
1b.21 6105271 - 21 Xxxxxxxxx IV
1b.22 6105271 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1b.24 6105271 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1b.26 6105271 - 26 Irwindale PH 1 - Building 12
1b.27 6105271 - 27 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 14
1b.29 6105271 - 29 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 18
1b.31 6105271 - 31 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 20
1b.33 6105271 - 33 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22
1b.35 6105271 - 35 Irwindale PH 2 - Building 23
1b.36 6105271 - 36 Decimal Point # 1
1b.37 6105271 - 37 Decimal Point # 3
1b.38 6105271 - 38 Decimal Point # 4
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
Original Term to
ARD Loan Maturity Date Maturity or ARD
ID Seller Loan Number Property Name (Y/N) or ARD (mos.)
------- ------------------- -------------------------------- -------------- --------------- -----------------
1a.41 6105270 - 41 1734 Centennial #2
1a.42 6105270 - 42 1734 Centennial #3
1a.43 6105270 - 43 Network Tech Center III (Data
Tech)
1b 6105271 Lion Industrial Portfolio No 1/1/2011 84
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4
1b.5 6105271 - 5 Peachtree 8 & 9
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road)
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office)
1b.9 6105271 - 9 Xxxxx Station
1b.10 6105271 - 10 Peachtree Center
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1b.12 6105271 - 12 Parkway Plaza (Avenue H)
1b.13 6105271 - 13 Woodlands Business Park
1b.14 6105271 - 14 Central 1, 2
1b.15 6105271 - 15 Xxxx Creek Xxxx. 0
1b.16 6105271 - 16 Eastport 1, 3
1b.17 6105271 - 17 Westpark 1, 2
1b.18 6105271 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1b.20 6105271 - 20 Xxxxxxxxx III
1b.21 6105271 - 21 Xxxxxxxxx IV
1b.22 6105271 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1b.24 6105271 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1b.26 6105271 - 26 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 13
1b.28 6105271 - 28 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 15
1b.30 6105271 - 30 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 19
1b.32 6105271 - 32 Irwindale PH 2 - Building 20
1b.33 6105271 - 33 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22
1b.35 6105271 - 35 Irwindale PH 2 - Building 23
1b.36 6105271 - 36 Decimal Point # 1
1b.37 6105271 - 37 Decimal Point # 3
1b.38 6105271 - 38 Decimal Point # 4
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
Stated
Remaining Crossed
Term to Original Remaining With
Maturity or Amortization Amortization Other
ID Seller Loan Number Property Name ARD (mos.) Term (mos.) Term (mos.) Loans
------- ------------------- -------------------------------- ------------ ------------- ------------- --------
1a.41 6105270 - 41 1734 Centennial #2 NO
1a.42 6105270 - 42 1734 Centennial #3 NO
1a.43 6105270 - 43 Network Tech Center III (Data NO
Tech)
1b 6105271 Lion Industrial Portfolio 82 360 360 Yes
7-Year
1b.1 6105271 - 1 2171 Kingston Court North NO
1b.2 6105271 - 0 Xxxxxxxx Xx. Bus. Park # 2 NO
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3 NO
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4 NO
1b.5 6105271 - 5 Peachtree 8 & 9 NO
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road) NO
1b.7 6105271 - 7 South Shore Dist (140 Laurel NO
St.)
1b.8 6105271 - 8 South Shore Dist (Office) NO
1b.9 6105271 - 9 Xxxxx Station NO
1b.10 6105271 - 10 Peachtree Center NO
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 XX
0x.00 6105271 - 00 Xxxxxxx Xxxxx (Xxxxxx H) NO
1b.13 6105271 - 13 Woodlands Business Park NO
1b.14 6105271 - 14 Central 1, 2 NO
1b.15 6105271 - 15 Xxxx Creek Bldg. 1 NO
1b.16 6105271 - 16 Eastport 1, 3 NO
1b.17 6105271 - 17 Westpark 1, 2 NO
1b.18 6105271 - 18 Xxxxxxxx 0, 0 XX
0x.00 0000000 - 00 Xxxxxxx III NO
1b.20 6105271 - 20 Xxxxxxxxx III NO
1b.21 6105271 - 21 Xxxxxxxxx IV NO
1b.22 6105271 - 22 Irwindale XX 0 - Xxxxxxxx 0 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7 NO
1b.24 6105271 - 24 Irwindale XX 0 - Xxxxxxxx 0 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10 NO
1b.26 6105271 - 26 Irwindale PH 1 - Building 12 NO
1b.27 6105271 - 27 Irwindale XX 0 - Xxxxxxxx 00 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 14 NO
1b.29 6105271 - 29 Irwindale XX 0 - Xxxxxxxx 00 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 18 NO
1b.31 6105271 - 31 Irwindale XX 0 - Xxxxxxxx 00 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 20 NO
1b.33 6105271 - 33 Irwindale XX 0 - Xxxxxxxx 00 XX
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22 NO
1b.35 6105271 - 35 Irwindale PH 2 - Building 23 NO
1b.36 6105271 - 36 Decimal Point # 1 NO
1b.37 6105271 - 37 Decimal Point # 3 NO
1b.38 6105271 - 38 Decimal Point # 4 NO
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 NO
Prepayment Provisions
ID Seller Loan Number Property Name Crossed Loan ID (# of payments) Interest
------- ------------------- -------------------------------- --------------- ---------------------------------- ---------
1a.41 6105270 - 41 1734 Centennial #2 Fee
1a.42 6105270 - 42 1734 Centennial #3 Fee
1a.43 6105270 - 43 Network Tech Center III (Data Fee
Tech)
1b 6105271 Lion Industrial Portfolio 1a Greater of: 1% of Tranche A Fee
7-Year balance outstanding x (months
remaining on the A Tranche/60)
+ 1% of the B Tranche balance
outstanding x (months remaining
on the B Tranche/84) and
YM(83)/OPEN(1)
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx Xxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2 Fee
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3 Fee
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4 Fee
1b.5 6105271 - 5 Peachtree 8 & 9 Fee
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road) Fee
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx Xxx
Xx.)
0x.0 6105271 - 0 Xxxxx Xxxxx Xxxx (Xxxxxx) Xxx
0x.0 6105271 - 9 Xxxxx Station Fee
1b.10 6105271 - 10 Peachtree Center Fee
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 Xxx
0x.00 6105271 - 00 Xxxxxxx Xxxxx (Xxxxxx H) Fee
1b.13 6105271 - 00 Xxxxxxxxx Xxxxxxxx Xxxx Xxx
0x.00 6105271 - 14 Central 1, 2 Fee
1b.15 6105271 - 00 Xxxx Xxxxx Xxxx. 1 Fee
1b.16 6105271 - 16 Eastport 1, 3 Fee
1b.17 6105271 - 17 Westpark 1, 2 Fee
1b.18 6105271 - 18 Xxxxxxxx 0, 0 Xxx
0x.00 0000000 - 00 Xxxxxxx III Fee
1b.20 6105271 - 20 Xxxxxxxxx III Fee
1b.21 6105271 - 21 Xxxxxxxxx IV Fee
1b.22 6105271 - 22 Irwindale PH 1 - Building 6 Fee
1b.23 6105271 - 23 Irwindale PH 1 - Building 7 Fee
1b.24 6105271 - 24 Irwindale PH 1 - Building 8 Fee
1b.25 6105271 - 25 Irwindale PH 1 - Building 10 Fee
1b.26 6105271 - 26 Irwindale PH 1 - Building 12 Fee
1b.27 6105271 - 27 Irwindale PH 1 - Building 13 Fee
1b.28 6105271 - 28 Irwindale PH 1 - Building 14 Fee
1b.29 6105271 - 29 Irwindale PH 1 - Building 15 Fee
1b.30 6105271 - 30 Irwindale PH 2 - Building 18 Fee
1b.31 6105271 - 31 Irwindale PH 2 - Building 19 Fee
1b.32 6105271 - 32 Irwindale PH 2 - Building 20 Fee
1b.33 6105271 - 33 Irwindale PH 2 - Building 21 Fee
1b.34 6105271 - 34 Irwindale PH 2 - Building 22 Fee
1b.35 6105271 - 35 Irwindale PH 2 - Building 23 Fee
1b.36 6105271 - 36 Decimal Point # 1 Fee
1b.37 6105271 - 37 Decimal Point # 3 Fee
1b.38 6105271 - 38 Decimal Point # 4 Fee
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 Fee
Administrative Due
ID Seller Loan Number Property Name Loan Seller Fee Rate Date Grace Period
------- --------------------- ------------------------- ------------- --------------- ------- ----------------
1a.41 6105270 - 41 1734 Centennial #2 PMCF
1a.42 6105270 - 42 1734 Centennial #3 PMCF
1a.43 6105270 - 43 Network Tech Center III (Data PMCF
Tech)
1b 6105271 Lion Industrial Portfolio PMCF 0.0329% 1st 0
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx XXXX
0x.0 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
0x.0 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
0x.0 6105271 - 0 Xxxxxxxx Xx. Xxx. Xxxx # 0 XXXX
0x.0 6105271 - 5 Peachtree 8 & 9 PMCF
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road) PMCF
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx XXXX
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office) PMCF
1b.9 6105271 - 9 Xxxxx Station PMCF
1b.10 6105271 - 10 Peachtree Center PMCF
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00 XXXX
0x.00 6105271 - 00 Xxxxxxx Xxxxx (Xxxxxx X) XXXX
0x.00 6105271 - 00 Xxxxxxxxx Xxxxxxxx Xxxx XXXX
0x.00 6105271 - 14 Central 1, 2 PMCF
1b.15 6105271 - 00 Xxxx Xxxxx Xxxx. 1 PMCF
1b.16 6105271 - 16 Eastport 1, 3 PMCF
1b.17 6105271 - 17 Westpark 1, 2 PMCF
1b.18 6105271 - 18 Xxxxxxxx 0, 0 XXXX
0x.00 0000000 - 00 Xxxxxxx III PMCF
1b.20 6105271 - 20 Xxxxxxxxx III PMCF
1b.21 6105271 - 21 Xxxxxxxxx IV PMCF
1b.22 6105271 - 22 Irwindale PH 1 - Building 6 PMCF
1b.23 6105271 - 23 Irwindale PH 1 - Building 7 PMCF
1b.24 6105271 - 24 Irwindale PH 1 - Building 8 PMCF
1b.25 6105271 - 25 Irwindale PH 1 - Building 10 PMCF
1b.26 6105271 - 26 Irwindale PH 1 - Building 12 PMCF
1b.27 6105271 - 27 Irwindale PH 1 - Building 13 PMCF
1b.28 6105271 - 28 Irwindale PH 1 - Building 14 PMCF
1b.29 6105271 - 29 Irwindale PH 1 - Building 15 PMCF
1b.30 6105271 - 30 Irwindale PH 2 - Building 18 PMCF
1b.31 6105271 - 31 Irwindale PH 2 - Building 19 PMCF
1b.32 6105271 - 32 Irwindale PH 2 - Building 20 PMCF
1b.33 6105271 - 33 Irwindale PH 2 - Building 21 PMCF
1b.34 6105271 - 34 Irwindale PH 2 - Building 22 PMCF
1b.35 6105271 - 35 Irwindale PH 2 - Building 23 PMCF
1b.36 6105271 - 36 Decimal Point # 1 PMCF
1b.37 6105271 - 37 Decimal Point # 3 PMCF
1b.38 6105271 - 38 Decimal Point # 4 PMCF
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0 XXXX
Letter of Guarantor/
ID Seller Loan Number Property Name Credit Letter of Credit Description Recourse
------- --------------------- ------------------------- ----------- -------------------------------- ------------
1a.41 6105270 - 41 1734 Centennial #2
1a.42 6105270 - 42 1734 Centennial #3
1a.43 6105270 - 43 Network Tech Center III (Data
Tech)
1b 6105271 Lion Industrial Portfolio NO YES
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4
1b.5 6105271 - 5 Peachtree 8 & 9
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road)
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office)
1b.9 6105271 - 9 Xxxxx Station
1b.10 6105271 - 10 Peachtree Center
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1b.12 6105271 - 12 Parkway Plaza (Avenue H)
1b.13 6105271 - 13 Woodlands Business Park
1b.14 6105271 - 14 Central 1, 2
1b.15 6105271 - 15 Xxxx Creek Xxxx. 0
1b.16 6105271 - 16 Eastport 1, 3
1b.17 6105271 - 17 Westpark 1, 2
1b.18 6105271 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1b.20 6105271 - 20 Xxxxxxxxx III
1b.21 6105271 - 21 Xxxxxxxxx IV
1b.22 6105271 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1b.24 6105271 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1b.26 6105271 - 26 Irwindale PH 1 - Building 12
1b.27 6105271 - 27 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 14
1b.29 6105271 - 29 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 18
1b.31 6105271 - 31 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 20
1b.33 6105271 - 33 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 22
1b.35 6105271 - 35 Irwindale PH 2 - Building 23
1b.36 6105271 - 36 Decimal Point # 1
1b.37 6105271 - 37 Decimal Point # 3
1b.38 6105271 - 38 Decimal Point # 4
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
Initial
Hospitality Master
ID Seller Loan Number Property Name Property Servicer
------- --------------------- ------------------------- ------------- ------------
1a.41 6105270 - 41 1734 Centennial #2
1a.42 6105270 - 42 1734 Centennial #3
1a.43 6105270 - 43 Network Tech Center III (Data
Tech)
1b 6105271 Lion Industrial Portfolio NO PAR
7-Year
1b.1 6105271 - 1 0000 Xxxxxxxx Xxxxx Xxxxx
0x.0 6105271 - 2 Kingston Ct. Bus. Park # 2
1b.3 6105271 - 3 Kingston Ct. Bus. Park # 3
1b.4 6105271 - 4 Kingston Ct. Bus. Park # 4
1b.5 6105271 - 5 Peachtree 8 & 9
1b.6 6105271 - 6 Recall Bts (Five Xxxxxx Road)
1b.7 6105271 - 0 Xxxxx Xxxxx Xxxx (000 Xxxxxx
Xx.)
0x.0 6105271 - 8 South Shore Dist (Office)
1b.9 6105271 - 9 Xxxxx Station
1b.10 6105271 - 10 Peachtree Center
1b.11 6105271 - 00 Xxxxxxxxx XX, Xxxxxxxx 00
1b.12 6105271 - 12 Parkway Plaza (Avenue H)
1b.13 6105271 - 13 Woodlands Business Park
1b.14 6105271 - 14 Central 1, 2
1b.15 6105271 - 15 Xxxx Creek Xxxx. 0
1b.16 6105271 - 16 Eastport 1, 3
1b.17 6105271 - 17 Westpark 1, 2
1b.18 6105271 - 18 Xxxxxxxx 0, 0
0x.00 0000000 - 00 Xxxxxxx III
1b.20 6105271 - 20 Xxxxxxxxx III
1b.21 6105271 - 21 Xxxxxxxxx IV
1b.22 6105271 - 22 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 7
1b.24 6105271 - 24 Irwindale XX 0 - Xxxxxxxx 0
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 10
1b.26 6105271 - 26 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 13
1b.28 6105271 - 28 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 15
1b.30 6105271 - 30 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 19
1b.32 6105271 - 32 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 21
1b.34 6105271 - 34 Irwindale XX 0 - Xxxxxxxx 00
0x.00 0000000 - 00 Xxxxxxxxx XX 0 - Building 23
1b.36 6105271 - 36 Decimal Point # 1
1b.37 6105271 - 37 Decimal Point # 3
1b.38 6105271 - 38 Decimal Point # 4
1b.39 6105271 - 00 Xxxxxxx Xxxxx Xxxxxxx Xxx # 0
XX Seller Loan Number Property Name Address City
-------- ------------------- ------------------------------ ------------------------------------------ -------------------
1b.40 6105271 - 40 1734 Centennial #1 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxxxx
0x.00 6105271 - 41 1734 Centennial #2 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxxxx
0x.00 6105271 - 42 1734 Centennial #3 1734 Centennial Drive San Antonio
1b.43 6105271 - 43 Network Tech Center III (Data 12401 Network Blvd. San Antonio
Tech)
5 6105208 Great Northern Mall 0000 Xxxxx 00 Clay
9 6105243 Valley Forge Towers North 3000 Valley Forge Circle King of Prussia
11 6105253 Villa Oaks Shopping Center 000 Xxxx Xxxxxxxxx Xxxx Xxxxx Xxxx
12 6105094 Xxxxxx Xxxxxxxx Xxxxx 00000-00000 Xxxxxxxx Center Drive San Diego
15 6105155 Westbury Village Townhomes 000 Xxxxx Xxxxxxxx Xxxx Xxxxxx Xxxxx
18 6105197 Braelinn Village Shopping 000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxx
Center
20 6105188 The Benchmark 000 Xxx Xxxxxxx Xxxx Mineola
23 6105248 Mansions At Technology Park Valley View Boulevard Rensselaer
Phase II
24 6105111 Bryant Park Studios 00 Xxxx 00xx Xxxxxx Xxx Xxxx
25 6105070 Stop & Stor Self Storage 00-00 Xxxxx Xxxxxx Maspeth
Facility
26 6105232 Alpine Square 0000 Xxxxxxx Xxxxx Xxxxxx Xxxxx
30 6105191 San Xxxxx Xxxxx Center 20-800 San Xxxxx Xxxxx Center San Pablo
31 6105251 Nine Xxxx Xxxxx 000 Xxxxx Xxxx Xxxxxxxxxxxx
33 6105237 Xxxx Xxxxxx Xxxxx 0000 Xxxxxxxxx Avenue Modesto
35 6105116 Republic Square 000 X. Xxxxxx Xxxxxx Xxxxxxxxxx
36 6105160 Florida Office/Flex Portfolio Various Various
36.1 6105160a Plaza Central 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxxx
36.2 6105160b Eastpointe Business Center 0000 Xx. Xxxx'x Xxxxx Xxxx Xxxxxxxxxxxx
36.3 6105160c Deerwood Business Center 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
37 6105224 Parkway Apartments 0000 Xxxxxx Xxxx Xxxxx Xxxxxxx
39 6105088 Xxxxx'x Hill Plaza 000 Xxxxx'x Xxxx Xxxx Xxxxxxxx
40 6105217 Trident Industrial Park 0000 Xxxxx Xxxx Xxxxx Xxx Xxxxx
41 6105085 Linens 'N Things 000 Xxxxx 00 Xxxx Xxxxxxxxxxx
44 6104976 Xxxxx Xxxx X Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxx Xxxx Boulevard Midvale
45 6105298 Southwest Pavilion 0000-0000 Xxxxx Xxxxxxxx Xxxxxx Reno
47 6105223 Ryder Logistics 0000 Xxxxxxxxx Xxxxx Xxxxxxxx
49 6105202 Xxxxxxxxxxx Xxxxxxx 0 Xxxxxxxx Xxxxx Xxxxx Xxxx
50 6105240 Good Xxxxxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx
51 6105146 Xxxxxxx Commercial Center 000 X.X. 00xx Xxxxxx Xxxxxxxx
60 6105282 BJ's Wholesale Club 00 Xxxx Xxxxxxxx Xxxx Xxxxxxxxx
62 6105139 Headquarters I & II 401-415 Headquarters Drive Millersville
64 6105174 Wesleyan Station Shopping 0000-0000 Xxxxxxx Xxxx Xxxxx
Center
71 6105220 Whistlewood Commons Apartments 000 Xxxxx Xxxxx Xxxxxx
00 0000000 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 & 0000 Xxxxx Blvd Amarillo
75 6105215 Walgreens - Auburn 0000 Xxxxxx Xxxx Xxxxxx
81 6105184 Bear's Path Retail Center 8800-8890 East Tanque Verde Road Tucson
83 6105136 000 Xxxxxx Xxxxxx Apartments 000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
84 6105163 American Self Storage 00000 Xxxxxxxx Xxxx Novi
85 6105216 Horizon Ridge Professional 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx
Center
88 6105213 Walgreens Post Falls 000 Xxxx Xxxxxxx Xxx Post Falls
95 6105054 Crossroads Shopping Center 11600-11662 X. Xxxxxxx Drive Xxxxxxx
97 6105221 Walgreen's - Roseville 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx
102 6105087 Newberg and Space Station Self Various Various
Storage
102.1 6105087a Xxxxxxx Self Storage 0000 Xxxxxxxx Xxxx Xxxxxxx
102.2 6105087b Space Station Self Storage 0000 Xxxxxxxxx Xxxx Xxxx Xxxx Xxxx Xxxxxxx
Original Cut-off Date
ID Seller Loan Number Property Name State Zip Code Balance Balance
-------- ------------------- ------------------------------ -------- ----------- --------------- ----------------
1b.40 6105271 - 40 0000 Xxxxxxxxxx #0 XX 00000 231,725 231,725
1b.41 6105271 - 41 0000 Xxxxxxxxxx #0 XX 00000 324,569 324,569
1b.42 6105271 - 42 0000 Xxxxxxxxxx #0 XX 00000 359,166 359,166
1b.43 6105271 - 00 Xxxxxxx Xxxx Xxxxxx XXX (Xxxx XX 00000 249,561 249,561
Tech)
5 6105208 Great Xxxxxxxx Xxxx XX 00000 43,000,000 42,853,667
9 0000000 Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000 24,500,000 24,500,000
11 6105253 Xxxxx Xxxx Xxxxxxxx Xxxxxx XX 00000 19,000,000 18,963,239
12 6105094 Xxxxxx Xxxxxxxx Xxxxx XX 00000 16,500,000 16,500,000
15 6105155 Xxxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 15,300,000 15,300,000
18 6105197 Braelinn Xxxxxxx Xxxxxxxx XX 00000 12,800,000 12,773,773
Center
20 6105188 The Xxxxxxxxx XX 00000 12,000,000 11,950,887
23 6105248 Mansions At Technology Xxxx XX 00000 11,200,000 11,200,000
Phase II
24 6105111 Bryant Xxxx Xxxxxxx XX 00000 11,000,000 11,000,000
25 6105070 Stop & Stor Self Storage XX 00000 11,000,000 10,980,365
Facility
26 6105232 Xxxxxx Xxxxxx XX 00000 10,000,000 9,927,977
30 6105191 San Xxxxx Xxxxx Xxxxxx XX 00000 9,500,000 9,471,878
31 6105251 Nine Xxxx Xxxxx XX 00000 9,250,000 9,234,838
33 6105237 Xxxx Xxxxxx Xxxxx XX 00000 9,000,000 8,971,765
35 0000000 Xxxxxxxx Xxxxxx XX 00000 8,800,000 8,744,992
36 6105160 Florida Office/Flex Portfolio Various Various 8,300,000 8,268,900
36.1 0000000x Xxxxx Xxxxxxx XX 00000 5,068,702 5,049,710
36.2 6105160b Xxxxxxxxxx Xxxxxxxx Xxxxxx XX 00000 1,964,122 1,956,763
36.3 6105160c Xxxxxxxx Xxxxxxxx Xxxxxx XX 00000 1,267,176 1,262,427
37 0000000 Xxxxxxx Xxxxxxxxxx XX 00000 8,275,000 8,257,522
39 6105088 Xxxxx'x Xxxx Xxxxx XX 00000 7,900,000 7,842,440
40 6105217 Xxxxxxx Xxxxxxxxxx Xxxx XX 00000 7,820,000 7,804,159
41 6105085 Linens 'N Xxxxxx XX 00000 7,800,000 7,718,216
44 0000000 Xxxxx Xxxx X Xxxxxx Xxxxxxxx XX 00000 7,500,000 7,465,570
45 6105298 Xxxxxxxxx Xxxxxxxx XX 00000 7,300,000 7,300,000
47 6105223 Xxxxx Xxxxxxxxx XX 00000 6,800,000 6,774,771
49 6105202 Xxxxxxxxxxx Xxxxxxx XX 00000 6,750,000 6,727,939
50 6105240 Good Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 6,400,000 6,386,986
51 6105146 Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 6,000,000 5,992,777
60 6105282 BJ's Xxxxxxxxx Xxxx XX 00000 5,200,000 5,152,359
62 6105139 Xxxxxxxxxxxx X & XX XX 00000 5,150,000 5,150,000
64 6105174 Wesleyan Xxxxxxx Xxxxxxxx XX 00000 5,100,000 5,079,121
Center
71 6105220 Xxxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 4,150,000 4,136,187
73 6105101 Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx XX 00000 4,050,000 4,023,063
75 6105215 Walgreens - Xxxxxx XX 00000 4,000,000 3,959,390
81 6105184 Bear's Xxxx Xxxxxx Xxxxxx XX 00000 3,600,000 3,590,209
83 6105136 000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 3,500,000 3,484,293
84 6105163 American Self Storage XX 00000 3,500,000 3,485,559
85 6105216 Horizon Ridge Professional XX 00000 3,400,000 3,390,593
Center
88 6105213 Walgreens Post Xxxxx XX 00000 3,350,000 3,343,481
95 6105054 Xxxxxxxxxx Xxxxxxxx Xxxxxx XX 00000 2,775,000 2,747,743
97 6105221 Walgreen's - Xxxxxxxxx XX 00000 2,700,000 2,694,520
102 6105087 Newberg and Space Station Self Various Various 2,310,000 2,291,045
Storage
102.1 6105087a Xxxxxxx Self Xxxxxxx XX 00000 1,128,573 1,119,313
102.2 6105087b Space Station Self Storage WA 98366 1,181,427 1,171,732
P&I Monthly IO Monthly Mortgage
ID Seller Loan Number Property Name Debt Service Debt Service Rate
-------- ------------------- ------------------------------ --------------- ---------------- ------------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Northern Mall 233,732.69 5.1100%
9 6105243 Valley Forge Towers North 135,593.56 109,090.22 5.2700%
11 6105253 Villa Oaks Shopping Center 115,876.39 6.1600%
12 6105094 Rancho Xxxxxxxx Plaza 101,593.34 87,131.08 6.2500%
15 6105155 Westbury Village Townhomes 86,775.75 5.4900%
18 6105197 Braelinn Village Shopping 75,594.17 5.8600%
Center
20 6105188 The Benchmark 89,398.14 6.4900%
23 6105248 Mansions At Technology Park 64,460.71 52,046.30 5.5000%
Xxxxx XX
00 0000000 Xxxxxx Xxxx Xxxxxxx 60,878.74 48,979.28 5.2700%
25 6105070 Stop & Stor Self Storage 65,269.89 5.1500%
Facility
26 6105232 Alpine Square 81,602.25 5.4800%
30 6105191 San Xxxxx Xxxxx Center 55,681.06 5.7900%
31 6105251 Nine Mall Plaza 58,752.62 5.8500%
33 6105237 Wood Colony Plaza 51,157.49 5.5100%
35 6105116 Republic Square 60,079.77 6.6200%
36 6105160 Florida Office/Flex Portfolio 56,822.63 6.6500%
36.1 6105160a Xxxxx Xxxxxxx
00.0 0000000x Xxxxxxxxxx Xxxxxxxx Xxxxxx
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments 48,028.14 5.7000%
39 6105088 Xxxxx'x Xxxx Plaza 44,904.91 5.5100%
40 6105217 Trident Industrial Park 46,483.40 5.9200%
41 6105085 Linens 'N Things 56,242.21 6.0800%
44 6104976 Union Park V Office Building 45,743.56 5.4300%
45 6105298 Southwest Pavilion 42,693.61 35,588.34 5.7700%
47 6105223 Ryder Logistics 55,959.40 5.6100%
49 6105202 Continental Gardens 37,524.99 5.3100%
50 6105240 Good Samaritan Office Building 37,960.74 5.9000%
51 6105146 Xxxxxxx Commercial Center 35,014.37 5.7500%
60 6105282 BJ's Wholesale Club 48,684.23 5.7500%
62 6105139 Headquarters I & II NAP 23,496.88 5.4000%
64 6105174 Wesleyan Station Shopping 29,568.11 5.6900%
Center
71 6105220 Whistlewood Commons Apartments 22,839.40 5.2200%
73 6105101 Xxxxx Village Shopping Center 25,624.24 6.2100%
75 6105215 Walgreens - Auburn 33,862.42 6.0500%
81 6105184 Bear's Path Retail Center 22,025.53 6.1900%
83 6105136 000 Xxxxxx Xxxxxx Apartments 21,639.62 5.5700%
84 6105163 American Self Storage 22,722.02 6.0800%
85 6105216 Horizon Ridge Professional 20,625.79 6.1100%
Center
88 6105213 Walgreens Post Falls 20,365.79 6.1300%
95 6105054 Crossroads Shopping Center 16,303.32 5.0500%
97 6105221 Walgreen's - Roseville 16,031.97 5.9100%
102 6105087 Newberg and Space Station Self 15,983.42 6.2700%
Storage
102.1 6105087a Newberg Self Storage
102.2 6105087b Space Station Self Storage
Interest Accrual
ID Seller Loan Number Property Name Basis
-------- ------------------- ------------------------------ -------------------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Northern Mall Actual/360
9 6105243 Valley Forge Towers North Actual/360
11 6105253 Villa Oaks Shopping Center Actual/360
12 6105094 Rancho Xxxxxxxx Plaza Actual/360
15 6105155 Westbury Village Townhomes Actual/360
18 6105197 Braelinn Village Shopping Actual/360
Center
20 6105188 The Benchmark Actual/360
23 6105248 Mansions At Technology Park Actual/360
Phase II
24 6105111 Bryant Park Studios Actual/360
25 6105070 Stop & Stor Self Storage Actual/360
Facility
26 6105232 Alpine Square Actual/360
30 6105191 San Xxxxx Xxxxx Center Actual/360
31 6105251 Nine Mall Plaza Actual/360
33 6105237 Wood Colony Plaza Actual/360
35 6105116 Republic Square Actual/360
36 6105160 Florida Office/Flex Portfolio Actual/360
36.1 6105160a Plaza Central
36.2 6105160b Eastpointe Business Center
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments Actual/360
39 6105088 Xxxxx'x Xxxx Plaza Actual/360
40 6105217 Trident Industrial Park Actual/360
41 6105085 Linens 'N Things Actual/360
44 6104976 Union Park V Office Building Actual/360
45 6105298 Southwest Pavilion Actual/360
47 6105223 Ryder Logistics Actual/360
49 6105202 Continental Gardens Actual/360
50 6105240 Good Samaritan Office Building Actual/360
51 6105146 Xxxxxxx Commercial Center Actual/360
60 6105282 BJ's Wholesale Club Actual/360
62 6105139 Headquarters I & II Actual/360
64 6105174 Wesleyan Station Shopping Actual/360
Center
71 6105220 Whistlewood Commons Apartments Actual/360
73 6105101 Xxxxx Village Shopping Center Actual/360
75 6105215 Walgreens - Auburn Actual/360
81 6105184 Bear's Path Retail Center Actual/360
83 6105136 000 Xxxxxx Xxxxxx Apartments Actual/360
84 6105163 American Self Storage Actual/360
85 6105216 Horizon Ridge Professional Actual/360
Center
88 6105213 Walgreens Post Falls Actual/360
95 6105054 Crossroads Shopping Center Actual/360
97 6105221 Walgreen's - Roseville Actual/360
102 6105087 Newberg and Space Station Self Actual/360
Storage
102.1 6105087a Xxxxxxx Self Storage
102.2 6105087b Space Station Self Storage
Original Term to
ARD Loan Maturity Date Maturity or ARD
ID Seller Loan Number Property Name (Y/N) or ARD (mos.)
-------- -------------------- --------------------------------- ----------- ---------------- -------------------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Northern Mall No 12/1/2013 120
9 6105243 Valley Forge Towers North No 2/1/2014 120
11 6105253 Villa Oaks Shopping Center No 1/1/2014 120
12 6105094 Rancho Xxxxxxxx Plaza No 1/1/2014 120
15 6105155 Westbury Village Townhomes No 3/1/2014 120
18 6105197 Braelinn Village Shopping Yes 1/1/2013 108
Center
20 6105188 The Benchmark No 1/1/2024 240
23 6105248 Mansions At Technology Park No 1/1/2014 120
Phase II
24 6105111 Bryant Park Studios No 11/1/2013 120
25 6105070 Stop & Stor Self Storage No 2/1/2014 120
Facility
26 6105232 Alpine Square No 1/1/2019 180
30 6105191 San Xxxxx Xxxxx Center No 12/1/2013 120
31 6105251 Nine Mall Plaza Yes 2/1/2014 120
33 6105237 Wood Colony Plaza Yes 12/1/2013 120
35 6105116 Republic Square No 10/1/2018 180
36 6105160 Florida Office/Flex Portfolio No 12/1/2018 180
36.1 6105160a Plaza Central
36.2 6105160b Eastpointe Business Center
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments No 1/1/2014 120
39 6105088 Xxxxx'x Xxxx Plaza No 8/1/2013 120
40 6105217 Trident Industrial Park No 1/1/2014 120
41 6105085 Linens 'N Things Yes 10/1/2017 168
44 6104976 Union Park V Office Building No 12/1/2013 120
45 6105298 Southwest Pavilion No 2/1/2014 120
47 6105223 Ryder Logistics Yes 2/1/2013 108
49 6105202 Continental Gardens No 12/1/2013 120
50 6105240 Good Samaritan Office Building No 1/1/2014 120
51 6105146 Xxxxxxx Commercial Center No 2/1/2014 120
60 6105282 BJ's Wholesale Club No 7/1/2016 150
62 6105139 Headquarters I & II No 10/1/2013 120
64 6105174 Wesleyan Station Shopping Yes 11/1/2013 120
Center
71 6105220 Whistlewood Commons Apartments No 12/1/2013 120
73 6105101 Xxxxx Village Shopping Center No 9/1/2013 120
75 6105215 Walgreens - Auburn No 12/1/2018 180
81 6105184 Bear's Path Retail Center No 12/1/2013 120
83 6105136 000 Xxxxxx Xxxxxx Apartments No 12/1/2013 120
84 6105163 American Self Storage No 12/1/2013 120
85 6105216 Horizon Ridge Professional No 12/1/2013 120
Center
88 6105213 Walgreens Post Falls Yes 1/1/2014 120
95 6105054 Crossroads Shopping Center No 9/1/2013 120
97 6105221 Walgreen's - Roseville Yes 1/1/2014 120
102 6105087 Newberg and Space Station Self No 10/1/2013 120
Storage
102.1 6105087a Xxxxxxx Self Storage
102.2 6105087b Space Station Self Storage
Stated
Remaining
Term to Original Remaining
Maturity or Amortization Amortization
ID Seller Loan Number Property Name ARD (mos.) Term (mos.) Term (mos.)
-------- -------------------- --------------------------------- -------------- ----------------- ------------------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Northern Mall 117 360 357
9 6105243 Valley Forge Towers North 119 360 360
11 6105253 Xxxxx Xxxx Xxxxxxxx Xxxxxx 000 000 000
12 6105094 Rancho Xxxxxxxx Plaza 118 360 360
15 6105155 Westbury Village Townhomes 120 360 360
18 6105197 Braelinn Village Shopping 106 360 358
Center
20 6105188 The Benchmark 238 240 238
23 6105248 Mansions At Technology Park 118 348 348
Phase II
24 6105111 Bryant Park Studios 116 360 360
25 6105070 Stop & Stor Self Storage 119 300 299
Facility
26 6105232 Alpine Square 178 180 178
30 6105191 San Xxxxx Xxxxx Center 117 360 357
31 6105251 Nine Mall Plaza 119 300 299
33 6105237 Wood Colony Plaza 117 360 357
35 6105116 Republic Square 175 300 295
36 6105160 Florida Office/Flex Portfolio 177 300 297
36.1 6105160a Xxxxx Xxxxxxx
00.0 0000000x Xxxxxxxxxx Xxxxxxxx Xxxxxx
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments 118 360 358
39 6105088 Xxxxx'x Xxxx Plaza 113 360 353
40 6105217 Trident Industrial Park 118 360 358
41 6105085 Linens 'N Things 163 240 235
44 6104976 Union Park V Office Building 117 300 297
45 6105298 Southwest Pavilion 119 360 360
47 6105223 Ryder Logistics 107 180 179
49 6105202 Continental Gardens 117 360 357
50 6105240 Good Xxxxxxxxx Xxxxxx Xxxxxxxx 000 000 000
51 6105146 Xxxxxxx Commercial Center 119 360 359
60 6105282 BJ's Wholesale Club 148 150 148
62 6105139 Headquarters I & II 115 0 0
64 6105174 Wesleyan Station Shopping 116 360 356
Center
71 6105220 Whistlewood Commons Apartments 117 360 357
73 6105101 Xxxxx Village Shopping Center 114 330 324
75 6105215 Walgreens - Auburn 177 180 177
81 6105184 Bear's Path Retail Center 117 360 357
83 6105136 000 Xxxxxx Xxxxxx Apartments 117 300 297
84 6105163 American Self Storage 117 300 297
85 6105216 Horizon Ridge Professional 117 360 357
Center
88 6105213 Walgreens Post Falls 118 360 358
95 6105054 Crossroads Shopping Center 114 300 294
97 6105221 Walgreen's - Roseville 118 360 358
102 6105087 Newberg and Space Station Self 115 270 265
Storage
102.1 6105087a Xxxxxxx Self Storage
102.2 6105087b Space Station Self Storage
Crossed
With
Other Crossed Prepayment Provisions (# of
ID Seller Loan Number Property Name Loans Loan ID payments)
-------- -------------------- --------------------------------- ------------ ------------- --------------------------------
1b.40 6105271 - 40 1734 Centennial #1 NO
1b.41 6105271 - 41 1734 Centennial #2 NO
1b.42 6105271 - 42 1734 Centennial #3 NO
1b.43 6105271 - 43 Network Tech Center III (Data NO
Tech)
5 6105208 Great Northern Mall NO LO(28)/Defeasance(88)/Open(4)
9 6105243 Valley Forge Towers North NO LO(26)/Defeasance(90)/Open(4)
11 6105253 Villa Oaks Shopping Center NO LO(27)/Defeasance(89)/Open(4)
12 6105094 Rancho Xxxxxxxx Plaza NO LO(27)/Defeasance(89)/Open(4)
15 6105155 Westbury Village Townhomes NO LO(25)/Defeasance(91)/Open(4)
18 6105197 Braelinn Village Shopping NO LO(27)/Defeasance(77)/Open(4)
Center
20 6105188 The Benchmark NO LO(27)/Defeasance(209)/Open(4)
23 6105248 Mansions At Technology Park NO LO(27)/Defeasance(89)/Open(4)
Phase II
24 6105111 Bryant Park Studios NO LO(29)/Defeasance(86)/Open(5)
25 6105070 Stop & Stor Self Storage NO LO(26)/Defeasance(90)/Open(4)
Facility
26 6105232 Alpine Square NO LO(26)/GRTR1% or YM(150)/Open(4)
30 6105191 San Xxxxx Xxxxx Center NO LO(47)/GRTR1% or YM(69)/Open(4)
31 6105251 Nine Xxxx Xxxxx XX XX(00)/Xxxxxxxxxx(00)/Xxxx(0)
00 0000000 Xxxx Xxxxxx Xxxxx NO LO(28)/Defeasance(88)/Open(4)
35 6105116 Republic Square NO LO(61)/GRTR1% or YM(112)/Open(7)
36 6105160 Florida Office/Flex Portfolio NO LO(28)/Defeasance(148)/Open(4)
36.1 6105160a Plaza Central NO
36.2 6105160b Eastpointe Business Center NO
36.3 6105160c Deerwood Business Center NO
37 6105224 Parkway Apartments NO LO(27)/Defeasance(89)/Open(4)
39 6105088 Xxxxx'x Xxxx Plaza NO LO(32)/Defeasance(84)/Open(4)
40 6105217 Trident Industrial Park NO LO(27)/Defeasance(89)/Open(4)
41 6105085 Linens 'N Things NO LO(30)/Defeasance(134)/Open(4)
44 6104976 Union Park V Office Building NO LO(28)/Defeasance(88)/Open(4)
45 6105298 Southwest Pavilion NO LO(26)/Defeasance(90)/Open(4)
47 6105223 Ryder Logistics NO LO(26)/Defeasance(78)/Open(4)
49 6105202 Continental Gardens NO LO(28)/GRTR1% or YM(85)/Open(7)
50 6105240 Good Samaritan Office Building NO LO(27)/Defeasance(89)/Open(4)
51 6105146 Xxxxxxx Commercial Center NO LO(26)/Defeasance(90)/Open(4)
60 6105282 BJ's Wholesale Club NO LO(27)/Defeasance(119)/Open(4)
62 6105139 Headquarters I & II NO LO(30)/Defeasance(86)/Open(4)
64 6105174 Wesleyan Station Shopping NO LO(29)/Defeasance(87)/Open(4)
Center
71 6105220 Whistlewood Commons Apartments NO LO(28)/GRTR1% or YM(85)/Open(7)
73 6105101 Xxxxx Village Shopping Center NO LO(31)/Defeasance(85)/Open(4)
75 6105215 Walgreens - Auburn NO LO(28)/Defeasance(148)/Open(4)
81 6105184 Bear's Path Retail Center NO LO(47)/GRTR1% or YM(69)/Open(4)
83 6105136 000 Xxxxxx Xxxxxx Apartments NO LO(28)/Defeasance(88)/Open(4)
84 6105163 American Self Storage NO LO(28)/Defeasance(88)/Open(4)
85 6105216 Horizon Ridge Professional NO LO(28)/Defeasance(88)/Open(4)
Center
88 6105213 Walgreens Post Falls NO LO(27)/Defeasance(89)/Open(4)
95 6105054 Crossroads Shopping Center NO LO(31)/Defeasance(85)/Open(4)
97 6105221 Walgreen's - Roseville NO LO(27)/Defeasance(89)/Open(4)
102 6105087 Newberg and Space Station Self NO LO(30)/Defeasance(86)/Open(4)
Storage
102.1 6105087a Xxxxxxx Self Storage NO
102.2 6105087b Space Station Self Storage NO
ID Seller Loan Number Property Name Interest
-------- -------------------- --------------------------------- ------------------
1b.40 6105271 - 40 1734 Centennial #1 Fee
1b.41 6105271 - 41 1734 Centennial #2 Fee
1b.42 6105271 - 42 1734 Centennial #3 Fee
1b.43 6105271 - 43 Network Tech Center III (Data Fee
Tech)
5 6105208 Great Northern Mall Fee
9 6105243 Valley Forge Towers North Fee
11 6105253 Villa Oaks Shopping Center Fee
12 6105094 Rancho Xxxxxxxx Plaza Fee
15 6105155 Westbury Village Townhomes Fee
18 6105197 Braelinn Village Shopping Fee
Center
20 6105188 The Benchmark Fee
23 6105248 Mansions At Technology Park Fee
Phase II
24 6105111 Bryant Park Studios Fee
25 6105070 Stop & Stor Self Storage Fee
Facility
26 6105232 Alpine Square Fee
30 6105191 San Xxxxx Xxxxx Center Fee
31 6105251 Nine Mall Plaza Leasehold
33 6105237 Wood Colony Plaza Fee
35 6105116 Republic Square Fee
36 6105160 Florida Office/Flex Portfolio Fee
36.1 6105160a Plaza Central Fee
36.2 6105160b Eastpointe Business Center Fee
36.3 6105160c Deerwood Business Center Fee
37 6105224 Parkway Apartments Fee
39 6105088 Xxxxx'x Xxxx Plaza Fee
40 6105217 Trident Industrial Park Fee
41 6105085 Linens 'N Things Fee
44 6104976 Union Park V Office Building Fee
45 6105298 Southwest Pavilion Fee
47 6105223 Ryder Logistics Fee
49 6105202 Continental Gardens Fee
50 6105240 Good Samaritan Office Building Leasehold
51 6105146 Xxxxxxx Commercial Center Fee
60 6105282 BJ's Wholesale Club Fee
62 6105139 Headquarters I & II Fee
64 6105174 Wesleyan Station Shopping Fee
Center
71 6105220 Whistlewood Commons Apartments Fee
73 6105101 Xxxxx Village Shopping Center Fee
75 6105215 Walgreens - Auburn Fee
81 6105184 Bear's Path Retail Center Fee
83 6105136 000 Xxxxxx Xxxxxx Apartments Fee
84 6105163 American Self Storage Fee
85 6105216 Horizon Ridge Professional Fee
Center
88 6105213 Walgreens Post Falls Fee
95 6105054 Crossroads Shopping Center Fee
97 6105221 Walgreen's - Roseville Fee
102 6105087 Newberg and Space Station Self Fee
Storage
102.1 6105087a Newberg Self Storage Fee
102.2 6105087b Space Station Self Storage Fee
Administrative Fee Due
ID Seller Loan Number Property Name Loan Seller Rate Date Grace Period
------- -------------------- ---------------------------------- -------------- -------------------- -------- --------------
1b.40 6105271 - 40 1734 Centennial #1 PMCF
1b.41 6105271 - 41 1734 Centennial #2 PMCF
1b.42 6105271 - 42 1734 Centennial #3 PMCF
1b.43 6105271 - 43 Network Tech Center III (Data PMCF
Tech)
5 6105208 Great Northern Mall PMCF 0.0529% 1st 5
9 6105243 Valley Forge Towers North PMCF 0.0729% 1st 5
11 6105253 Villa Oaks Shopping Center PMCF 0.0829% 1st 5
12 6105094 Rancho Xxxxxxxx Plaza PMCF 0.0329% 1st 5
15 6105155 Westbury Village Townhomes PMCF 0.0829% 1st 5
18 6105197 Braelinn Village Shopping PMCF 0.0829% 1st 5
Center
20 6105188 The Benchmark PMCF 0.0329% 1st 5
23 6105248 Mansions At Technology Park PMCF 0.0629% 1st 5
Phase II
24 6105111 Bryant Park Studios PMCF 0.0329% 1st 5
25 6105070 Stop & Stor Self Storage PMCF 0.0329% 1st 5
Facility
26 6105232 Alpine Square PMCF 0.0329% 1st 5
30 6105191 San Xxxxx Xxxxx Center PMCF 0.0329% 1st 5
31 6105251 Nine Mall Plaza PMCF 0.0329% 1st 5
33 6105237 Wood Colony Plaza PMCF 0.0329% 1st 5
35 6105116 Republic Square PMCF 0.0329% 1st 5
36 6105160 Florida Office/Flex Portfolio PMCF 0.0329% 1st 5
36.1 6105160a Plaza Central PMCF
36.2 6105160b Eastpointe Business Center PMCF
36.3 6105160c Deerwood Business Center PMCF
37 6105224 Parkway Apartments PMCF 0.0529% 1st 5
39 6105088 Xxxxx'x Xxxx Plaza PMCF 0.0829% 1st 2
40 6105217 Trident Industrial Park PMCF 0.0329% 1st 5
41 6105085 Linens 'N Things PMCF 0.0329% 1st 5
44 6104976 Union Park V Office Building PMCF 0.0329% 1st 5
45 6105298 Southwest Pavilion PMCF 0.0329% 1st 5
47 6105223 Ryder Logistics PMCF 0.0329% 1st 5
49 6105202 Continental Gardens PMCF 0.0329% 1st 5
50 6105240 Good Samaritan Office Building PMCF 0.0329% 1st 5
51 6105146 Xxxxxxx Commercial Center PMCF 0.0829% 1st 5
60 6105282 BJ's Wholesale Club PMCF 0.0529% 1st 5
62 6105139 Headquarters I & II PMCF 0.0329% 1st 2
64 6105174 Wesleyan Station Shopping PMCF 0.0829% 1st 5
Center
71 6105220 Whistlewood Commons Apartments PMCF 0.0329% 1st 5
73 6105101 Xxxxx Village Shopping Center PMCF 0.0329% 1st 5
75 6105215 Walgreens - Auburn PMCF 0.0329% 1st 5
81 6105184 Bear's Path Retail Center PMCF 0.0329% 1st 5
83 6105136 000 Xxxxxx Xxxxxx Xxxxxxxxxx XXXX 0.0829% 1st 5
84 6105163 American Self Storage PMCF 0.0829% 1st 5
85 6105216 Horizon Ridge Professional PMCF 0.0529% 1st 5
Center
88 6105213 Walgreens Post Falls PMCF 0.0829% 1st 5
95 6105054 Crossroads Shopping Center PMCF 0.0829% 0xx 0
00 0000000 Xxxxxxxx'x - Xxxxxxxxx PMCF 0.0329% 1st 5
102 6105087 Newberg and Space Station Self PMCF 0.0329% 1st 5
Storage
102.1 6105087a Xxxxxxx Self Storage PMCF
102.2 6105087b Space Station Self Storage PMCF
Letter of Letter of Guarantor/
ID Seller Loan Number Property Name Credit Credit Description Recourse
------- -------------------- ---------------------------------- ----------- ------------------------ ------------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Xxxxxxxx Xxxx XX XX
0 0000000 Xxxxxx Xxxxx Xxxxxx Xxxxx NO NO
11 6105253 Villa Oaks Shopping Xxxxxx XX XX
00 0000000 Xxxxxx Xxxxxxxx Xxxxx NO NO
15 6105155 Westbury Village Townhomes NO NO
18 6105197 Braelinn Village Shopping NO NO
Center
20 6105188 The Benchmark NO NO
23 6105248 Mansions At Technology Park NO NO
Phase II
24 6105111 Bryant Park Studios NO NO
25 6105070 Stop & Stor Self Storage NO NO
Facility
26 6105232 Alpine Square NO NO
30 6105191 San Xxxxx Xxxxx Center NO NO
31 6105251 Nine Xxxx Xxxxx XX XX
00 0000000 Xxxx Xxxxxx Xxxxx NO NO
35 6105116 Republic Square NO NO
36 6105160 Florida Xxxxxx/Xxxx Xxxxxxxxx XX XX
00.0 0000000x Xxxxx Xxxxxxx
36.2 6105160b Eastpointe Business Center
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments NO NO
39 6105088 Xxxxx'x Xxxx Plaza NO NO
40 6105217 Trident Industrial Park NO NO
41 6105085 Linens 'N Things NO NO
44 6104976 Union Park V Office Building NO NO
45 6105298 Southwest Pavilion NO NO
47 6105223 Ryder Logistics XX XX
00 0000000 Xxxxxxxxxxx Xxxxxxx NO NO
50 6105240 Good Samaritan Office Building NO NO
51 6105146 Xxxxxxx Commercial Center NO NO
60 6105282 BJ's Wholesale Club NO NO
62 6105139 Headquarters I & II NO NO
64 6105174 Wesleyan Station Shopping NO NO
Center
71 6105220 Whistlewood Commons Apartments NO NO
73 6105101 Xxxxx Village Shopping Center NO NO
75 6105215 Walgreens - Auburn NO NO
81 6105184 Bear's Path Retail Center NO NO
83 6105136 000 Xxxxxx Xxxxxx Apartments NO NO
84 6105163 American Self Storage NO NO
85 6105216 Horizon Ridge Professional NO NO
Center
88 6105213 Walgreens Post Falls NO NO
95 6105054 Crossroads Shopping Center NO NO
97 6105221 Walgreen's - Roseville NO NO
102 6105087 Newberg and Space Station Self NO NO
Storage
102.1 6105087a Newberg Self Storage
102.2 6105087b Space Station Self Storage
Initial
Hospitality Master
ID Seller Loan Number Property Name Property Servicer
------- -------------------- ---------------------------------- ------------- ----------
1b.40 6105271 - 40 1734 Centennial #1
1b.41 6105271 - 41 1734 Centennial #2
1b.42 6105271 - 42 1734 Centennial #3
1b.43 6105271 - 43 Network Tech Center III (Data
Tech)
5 6105208 Great Northern Mall NO PAR
9 6105243 Valley Forge Towers North NO PAR
11 6105253 Villa Oaks Shopping Center NO PAR
12 6105094 Rancho Xxxxxxxx Plaza NO PAR
15 6105155 Westbury Village Townhomes NO PAR
18 6105197 Braelinn Village Shopping NO PAR
Center
20 6105188 The Benchmark NO PAR
23 6105248 Mansions At Technology Park NO PAR
Phase II
24 6105111 Bryant Park Studios NO PAR
25 6105070 Stop & Stor Self Storage NO PAR
Facility
26 6105232 Alpine Square NO PAR
30 6105191 San Xxxxx Xxxxx Center NO PAR
31 6105251 Nine Xxxx Xxxxx XX XXX
00 0000000 Xxxx Xxxxxx Xxxxx NO PAR
35 6105116 Republic Square NO PAR
36 6105160 Florida Office/Flex Portfolio XX XXX
00.0 0000000x Xxxxx Xxxxxxx
36.2 6105160b Eastpointe Business Center
36.3 6105160c Deerwood Business Center
37 6105224 Parkway Apartments NO PAR
39 6105088 Xxxxx'x Xxxx Plaza NO PAR
40 6105217 Trident Industrial Park NO PAR
41 6105085 Linens 'N Things NO PAR
44 6104976 Union Park V Office Building NO PAR
45 6105298 Southwest Pavilion NO PAR
47 6105223 Ryder Logistics NO PAR
49 6105202 Continental Gardens NO PAR
50 6105240 Good Samaritan Office Building NO PAR
51 6105146 Xxxxxxx Commercial Center NO PAR
60 6105282 BJ's Wholesale Club NO PAR
62 6105139 Headquarters I & II NO PAR
64 6105174 Wesleyan Station Shopping NO PAR
Center
71 6105220 Whistlewood Commons Apartments NO PAR
73 6105101 Xxxxx Village Shopping Center NO PAR
75 6105215 Walgreens - Auburn NO PAR
81 6105184 Bear's Path Retail Center NO PAR
83 6105136 000 Xxxxxx Xxxxxx Apartments NO PAR
84 6105163 American Self Storage NO PAR
85 6105216 Horizon Ridge Professional NO PAR
Center
88 6105213 Walgreens Post Falls NO PAR
95 6105054 Crossroads Shopping Center NO PAR
97 6105221 Walgreen's - Roseville NO PAR
102 6105087 Newberg and Space Station Self NO PAR
Storage
102.1 6105087a Xxxxxxx Self Storage
102.2 6105087b Space Station Self Storage
ID Seller Loan Number Property Name Address City State Zip Code
---- -------------------- ---------------------------- ---------------------------- ---------- ------- ------------
104 6105182 East XxXxxxxx Mini Storage 0000 Xxxx XxXxxxxx Xxxx Xxxxxxx XX 00000
107 6105159 Lakewood Terrace Apartments 0000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000
108 6105183 75th Avenue Storage 00000 Xxxxx 00xx Xxxxxx Xxxxxx XX 00000
109 6105138 Gibralter Street 000-000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
110 6105137 Baltimore Commons 0000-0000 Xxx Xxxxx Xxxx Xxxxxxx XX 00000
111 6105219 Buck's Run Apartments 000 Xxxxxx Xxxx Xxxxxx XX 00000
113 6105004 Broadway West Self Storage 00000 Xxxx Xxxxxxxx (XX 000) Xxxxxxxx XX 00000
Original Cut-off Date P&I Monthly IO Monthly
ID Seller Loan Number Property Name Balance Balance Debt Service Debt Service
---- -------------------- ---------------------------- ----------- ---------- -------------- --------------
104 6105182 East XxXxxxxx Mini Storage 2,100,000 2,071,578 17,868.82
107 6105159 Lakewood Terrace Apartments 1,960,000 1,952,280 11,600.40
108 6105183 00xx Xxxxxx Storage 1,955,000 1,944,331 15,380.86
109 6105138 Gibralter Street 1,950,000 1,950,000 NAP 8,896.88
110 6105137 Baltimore Commons 1,900,000 1,900,000 NAP 8,668.75
111 6105219 Buck's Run Apartments 1,850,000 1,843,842 10,181.42
113 6105004 Broadway West Self Storage 1,825,000 1,806,795 11,602.82
Mortgage Interest Accrual
ID Seller Loan Number Property Name Rate Basis
---- -------------------- ---------------------------- ---------- ------------------
104 6105182 East XxXxxxxx Mini Storage 6.1300% Actual/360
107 6105159 Lakewood Terrace Apartments 5.8800% Actual/360
108 6105183 00xx Xxxxxx Storage 7.1900% Actual/360
109 6105138 Gibralter Street 5.4000% Actual/360
110 6105137 Baltimore Commons 5.4000% Actual/360
111 6105219 Buck's Run Apartments 5.2200% Actual/360
113 6105004 Broadway West Self Storage 5.8600% Actual/360
Stated
Remaining
Original Term to Term to
ARD Loan Maturity Date Maturity or ARD Maturity or
ID Seller Loan Number Property Name (Y/N) or ARD (mos.) ARD (mos.)
------ -------------------- ------------------------------ ----------- --------------- ------------------ --------------
104 6105182 East XxXxxxxx Mini Storage No 11/1/2018 180 176
107 6105159 Lakewood Terrace Apartments No 11/1/2013 120 116
108 6105183 00xx Xxxxxx Storage No 12/1/2023 240 237
109 6105138 Xxxxxxxxx Xxxxxx Xx 00/0/0000 120 115
110 6105137 Baltimore Commons No 10/1/2013 120 115
111 6105219 Buck's Run Apartments No 12/1/2013 120 117
113 6105004 Broadway West Self Storage No 8/1/2013 120 113
Crossed
Original Remaining With
Amortization Amortization Other
ID Seller Loan Number Property Name Term (mos.) Term (mos.) Loans Crossed Loan ID
------ -------------------- ------------------------------ -------------- -------------- ---------- -----------------
104 6105182 East XxXxxxxx Mini Storage 180 176 NO
107 6105159 Lakewood Terrace Apartments 360 356 NO
108 6105183 75th Avenue Storage 240 237 NO
109 6105138 Xxxxxxxxx Xxxxxx 0 0 NO
110 6105137 Baltimore Commons 0 0 NO
111 6105219 Buck's Run Apartments 360 357 NO
113 6105004 Broadway West Self Storage 300 293 NO
Prepayment Provisions (# of
ID Seller Loan Number Property Name payments) Interest
------ -------------------- ------------------------------ -------------------------------- ----------
104 6105182 East XxXxxxxx Mini Storage LO(29)/Defeasance(147)/Open(4) Fee
107 6105159 Lakewood Terrace Apartments LO(29)/Defeasance(87)/Open(4) Fee
108 6105183 75th Avenue Storage LO(28)/Defeasance(208)/Open(4) Fee
109 6105138 Gibralter Street LO(30)/Defeasance(86)/Open(4) Fee
110 6105137 Baltimore Commons LO(30)/Defeasance(86)/Open(4) Fee
111 6105219 Buck's Run Apartments LO(28)/GRTR1% or YM(85)/Open(7) Fee
113 6105004 Broadway West Self Storage LO(32)/Defeasance(84)/Open(4) Fee
Administrative Fee Due
ID Seller Loan Number Property Name Loan Seller Rate Date Grace Period
------- -------------------- ------------------------------ ------------- ------------------- ----- --------------
104 6105182 East XxXxxxxx Mini Storage PMCF 0.0329% 1st 5
107 6105159 Lakewood Terrace Apartments PMCF 0.0329% 1st 5
108 6105183 75th Avenue Storage PMCF 0.0329% 1st 5
109 6105138 Gibralter Street PMCF 0.0829% 1st 2
110 6105137 Baltimore Commons PMCF 0.0329% 1st 2
111 6105219 Buck's Run Apartments PMCF 0.0329% 1st 5
113 6105004 Broadway West Self Storage PMCF 0.0329% 1st 5
Guarantor/
ID Seller Loan Number Property Name Letter of Credit Letter of Credit Description Recourse
------- -------------------- ------------------------------ ------------------ ------------------------------ ------------
104 6105182 East XxXxxxxx Mini Storage NO NO
107 6105159 Lakewood Terrace Apartments NO NO
108 6105183 00xx Xxxxxx Storage NO NO
109 6105138 Xxxxxxxxx Xxxxxx XX XX
000 0000000 Xxxxxxxxx Commons NO NO
111 6105219 Buck's Run Apartments NO NO
113 6105004 Broadway West Self Storage NO NO
Initial
Hospitality Master
ID Seller Loan Number Property Name Property Servicer
------- -------------------- ------------------------------ ------------- ----------
104 6105182 East XxXxxxxx Mini Storage NO PAR
107 6105159 Lakewood Terrace Apartments NO PAR
108 6105183 75th Avenue Storage NO PAR
109 6105138 Gibralter Street NO PAR
110 6105137 Baltimore Commons NO PAR
111 6105219 Buck's Run Apartments NO PAR
113 6105004 Broadway West Self Storage NO PAR
SCHEDULE I-B
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
S-I-B-1
Seller Loan
ID Number Property Name Address City
------ ------------ --------------------------- ------------------------------------------- ----------------
3 38308 The Xxxxxx Center 000 Xxxxx 0xx Xxxxxx Xxxxxxxxxxxx
0 00000 Xxxxxx City Place NEC East Alameda Avenue & I-225 Aurora
6 39623 Trinity Centre 111 and 000 Xxxxxxxx Xxx Xxxx
7 38723 Carmel Mountain Plaza 11602 Carmel Mountain Road San Diego
10 00000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Boulevard and Xxxxxxxx Road Hickory
16 39581 Las Colinas Plaza 0000 Xxxxx XxxXxxxxx Xxxxxxxxx Irving
28 39957 Middletown Village 0000 Xxxx Xxxx Xxxx Xxxxxxxxxx
00 00000 The International Village 0000 Xxxxxxx Xxxxx Xxxxxxxxx
00 00000 Xxxxxx-Spruce Multifamily Portfolio Various Philadelphia
42.1 00000-0 Xxxxxx Xxxxx Apartments 0000 Xxxxxxxxx Xxxxxx Philadelphia
42.2 00000-0 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx
52 39808 Killearn Shopping Center 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx
00 00000 Xxxxx Xxxxxxx Crossing 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
00 00000 Delray Commons 0000 Xxxx Xxxxxxxx Xxxxxx Delray Beach
56 00000 Xxxxx Xxxxx 000-000 00xx Xxxxxx Xxxxxxxx
63 39226 0000 Xxxx 00xx Xxxxxx 0000 Xxxx 00xx Xxxxxx Xxxxxxxx
65 38799 000 Xxxxx Xxxx Xxxxx 000 Xxxxx Xxxx Place Bronx
66 38795 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx Yonkers
67 38189 Bon Marche 0000 Xxxxx 00xx Xxxxxx Tacoma
68 38801 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxx
00 00000 Xxxxxxxx Center 000 XX Xxxx Xx. Xxxxx Xxxxxxxxx Xxxx Xx. Lucie
72 36752 Federal Trust Building 000 Xxxxx 00xx Xxxxxx Lincoln
74 38060 Lowe's Ontario Ohio 000 Xxxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxx
00 00000 CompUSA Lombard 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx
00 00000 Xxxx 1 Lombard 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx
00 00000 Xxxxxxxxxx National Center 00000-00 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx
79 38798 2585-2593 Grand Concourse 0000-0000 Xxxxx Xxxxxxxxx Xxxxx
80 00000 Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxx Xxxxx Xxxxx
00 00000 Redbird Oaks Shopping Center 0000 Xxxxxx Xxxx Xxxxxx
94 38796 0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxxx
96 38061 BJ's Xxxxxx Xxx Xxxx 0000 Xxxxxxxxxxx Xxxx Geneva
99 38755 Pine Island Plaza 0000 Xxxx Xxxxxx Xxxx Sunrise
101 38989 0000-0000 Xxxx Xxxxxx 0000-0000 Xxxx Xxxxxx Xxx Xxxx
103 39216 FedEx Ocala 0000 Xxxxxxxxx 00xx Xxxxxx Ocala
105 38623 Morningside Center 1720-1788 XX Xxxx Xxxxx Xxxxx Xxxxxxxxx Xxxx Xx. Lucie
106 38797 1916 Grand Concourse 0000 Xxxxx Xxxxxxxxx Xxxxx
114 38522 0 Xxxxx 00xx Xxxxxx 0 Xxxxx 00xx Xxxxxx Xxxxx Xxxxxx
115 39218 FedEx Winona Xxxxx Xxxxx 0, Xxx 0000 Xxxxxx
X&X Monthly
Original Cut-off Date Debt IO Monthly Mortgage Interest
ID State Zip Code Balance Balance Service Debt Service Rate Accrual Basis
------ --------- ----------- ------------ ------------- ------------ -------------- ---------- -----------------
0 XX 00000 63,000,000 62,710,316 381,369.87 6.0900% Xxxxxx/000
0 XX 00000 48,955,840 48,892,750 280,661.58 5.5170% Xxxxxx/000
0 XX 00000 39,400,000 39,400,000 243,641.14 196,740.07 5.9100% Xxxxxx/000
0 XX 00000 35,500,000 35,167,333 202,010.79 5.5200% Actual/360
00 XX 00000 23,650,000 23,650,000 89,298.46 4.5310% 30/360
16 XX 00000 14,950,000 14,950,000 89,392.65 75,472.41 5.9750% Actual/360
00 XX 00000 10,000,000 10,000,000 37,758.33 4.5310% 30/360
00 XX 00000 10,000,000 10,000,000 57,093.00 5.5500% Actual/360
42 PA Various 7,650,000 7,639,752 41,085.56 5.0040% Actual/360
42.1 PA 19151 6,817,617 6,808,483 36,615.11
42.2 PA 19103 832,383 831,268 4,470.45
00 XX 00000 5,970,000 5,970,000 22,541.73 4.5310% 30/360
00 XX 00000 5,800,000 5,800,000 21,798.33 4.5100% 30/360
00 XX 00000 5,750,000 5,721,564 35,396.08 5.8650% Actual/360
00 XX 00000 5,700,000 5,683,512 33,808.78 5.9000% Actual/360
00 XX 00000 5,150,000 5,130,372 31,009.42 6.0400% Actual/360
00 XX 00000 3,081,000 3,064,872 17,454.94 5.4800% Actual/360
00 XX 00000 1,975,000 1,962,415 11,176.69 5.4700% Actual/360
67 XX 00000 4,900,000 4,879,596 31,100.34 6.5400% Actual/360
00 XX 00000 4,720,000 4,695,292 26,740.44 5.4800% Actual/360
00 XX 00000 4,610,000 4,589,104 25,257.09 5.1800% Actual/360
00 XX 00000 4,065,000 4,038,129 26,928.74 6.2950% Xxxxxx/000
00 XX 00000 4,050,000 4,026,534 24,099.83 5.9300% Actual/360
00 XX 00000 4,000,000 4,000,000 17,483.33 5.2450% 30/360
00 XX 00000 3,850,000 3,850,000 15,560.42 4.8500% 30/360
00 XX 00000 3,850,000 3,820,447 26,140.00 6.5600% Actual/360
00 XX 00000 3,820,000 3,800,004 21,641.63 5.4800% Actual/360
00 XX 00000 3,750,000 3,727,777 23,478.32 5.7000% Actual/360
00 XX 00000 3,150,000 3,136,013 19,395.09 6.2500% Actual/360
00 XX 00000 2,855,000 2,836,808 16,156.68 5.4700% Actual/360
00 XX 00000 2,735,000 2,719,646 16,538.64 6.0800% Actual/360
00 XX 00000 2,700,000 2,686,647 16,620.77 5.8650% Actual/360
000 XX 00000 2,400,000 2,395,352 14,629.25 6.1550% Actual/360
000 XX 00000 2,235,000 2,228,663 13,392.77 5.9950% Actual/360
000 XX 00000 2,040,000 2,030,753 11,176.67 5.1800% Actual/360
000 XX 00000 2,015,000 2,002,160 11,403.05 5.4700% Actual/360
000 XX 00000 1,625,000 1,614,646 9,196.01 5.4700% Actual/360
000 XX 00000 1,225,000 1,220,787 7,797.47 6.2000% Actual/360
Stated
Remaining
Original Term to Term to
Seller Loan ARD Loan Maturity Date Maturity or ARD Maturity or
ID Number Property Name (Y/N) or ARD (mos.) ARD (mos.)
------ ------------- ------------------------------------ -------- ------------- -------------------- ------------
3 38308 The Xxxxxx Center No 10/1/2013 120 115
4 40148 Aurora City Place No 7/1/2013 113 112
6 39623 Trinity Centre No 11/1/2010 84 80
7 38723 Carmel Mountain Plaza No 6/1/2013 120 111
10 00000 Xxxxxxx Xxxxx No 2/1/2009 60 59
16 39581 Las Colinas Plaza No 1/1/2014 120 118
28 39957 Middletown Village No 2/1/2009 60 59
29 39418 The International Village No 3/1/2014 120 120
42 39625 Xxxxxx-Spruce Multifamily Portfolio No 2/1/2009 60 59
42.1 00000-0 Xxxxxx Xxxxx Apartments
42.2 39625-2 Xxxxxx Xxxxxx
00 00000 Xxxxxxxx Shopping Center No 2/1/2009 60 59
54 39578 Cedar Springs Crossing No 8/1/2010 78 77
55 38678 Delray Commons No 11/1/2013 120 116
56 00000 Xxxxx Xxxxx No 12/1/2013 120 117
63 39226 0000 Xxxx 00xx Xxxxxx No 11/1/2013 120 116
65 38799 000 Xxxxx Xxxx Xxxxx No 10/1/2008 60 55
66 38795 00 Xxxxx Xxxxxx No 9/1/2008 60 54
67 38189 Bon Marche No 10/1/2013 120 115
68 38801 0000 Xxxxxx Xxxxxx No 10/1/2008 60 55
69 38622 Lakeside Center No 11/1/2010 84 80
72 36752 Federal Trust Building No 10/1/2010 84 79
74 38060 Lowe's Ontario Ohio Yes 9/1/2013 120 114
76 37226 CompUSA Lombard No 2/1/2010 84 71
77 39643 Pier 1 Lombard Yes 1/1/2009 60 58
78 38704 Huntington National Center No 9/1/2013 120 114
79 38798 2585-2593 Grand Concourse No 10/1/2008 60 55
80 00000 Xxxxxxxxxx Xxxxx No 11/1/2013 120 116
92 38523 Redbird Oaks Shopping Center No 10/1/2013 120 115
94 38796 0000 Xxxxxxxxxx Xxxxxx No 9/1/2008 60 54
96 38061 BJ's Geneva New York Yes 9/1/2013 120 114
99 38755 Pine Island Plaza No 11/1/2013 120 116
101 38989 0000-0000 Xxxx Xxxxxx No 1/1/2014 120 118
103 39216 FedEx Ocala Yes 12/1/2013 120 117
105 38623 Morningside Center No 11/1/2010 84 80
106 38797 1916 Grand Concourse No 9/1/2008 60 54
114 38522 0 Xxxxx 00xx Xxxxxx No 9/1/2008 60 54
115 39218 FedEx Winona No 12/1/2013 120 117
Crossed
Original Remaining With
Amortization Amortization Other Crossed Prepayment Provisions (# of
ID Term (mos.) Term (mos.) Loans Loan ID payments) Interest
----- -------------- -------------- ---------- --------- --------------------------------- ------------
3 360 355 NO LO(29)/Gtr 1% Or YM(88)/Open (3) Fee
4 353 352 NO LO(16)/Gtr 1% Or YM(96)/Open(1) Fee
6 324 324 NO LO(28)/Defeasance(55)/Open(1) Fee
7 360 351 NO LO(47)/Defeasance(72)/Open(1) Fee
10 0 0 NO LO(35)/Gtr 1% Or YM(23)/Open(2) Fee
16 360 360 NO LO(26)/Defeasance(92)/Open(2) Fee
28 0 0 NO LO(35)/Gtr 1% Or YM(23)/Open(2) Fee
29 360 360 NO LO(24)/Defeasance(95)/Open(1) Leasehold
42 360 359 NO LO(47)/Defeasance(12)/Open(1) Fee
42.1
42.2
52 0 0 NO LO(35)/Gtr 1% Or YM(23)/Open(2) Fee
54 0 0 NO LO(35)/Gtr 1% Or YM(41)/Open(2) Fee
55 324 320 NO LO(28)/Defeasance(91)/Open(1) Fee
56 360 357 NO LO(27)/Defeasance(92)/Open(1) Fee
63 360 356 NO LO(47)/Gtr 1% Or YM(72)/Open(1) Fee
65 360 355 Yes 66 LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
66 360 354 Yes 65 LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
67 360 355 NO LO(47)/Gtr 1% Or YM(72)/Open(1) Fee
68 360 355 NO LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
69 360 356 NO LO(47)/Defeasance(34)/Open(3) Fee
72 300 295 NO LO(47)/Gtr 1% Or YM(36)/Open(1) Fee
74 360 354 NO LO(47)/Defeasance(72)/Open(1) Fee
76 0 0 NO LO(35)/Gtr 1% Or YM(47)/Open(2) Fee
77 0 0 NO LO(35)/Gtr 1% Or YM(23)/Open(2) Fee
78 300 294 NO LO(47)/Defeasance(72)/Open(1) Leasehold
79 360 355 NO LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
80 300 296 NO LO(47)/Gtr 1% Or YM(72)/Open(1) Fee
92 360 355 NO LO(47)/Gtr 1% Or YM(72)/Open(1) Fee
94 360 354 NO LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
96 360 354 NO LO(47)/Defeasance(72)/Open(1) Fee
99 324 320 NO LO(28)/Defeasance(91)/Open(1) Fee
101 360 358 NO LO(26)/Defeasance(93)/Open(1) Fee
103 360 357 NO LO(27)/Defeasance(92)/Open(1) Fee
105 360 356 NO LO(47)/Defeasance(34)/Open(3) Fee
106 360 354 NO LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
114 360 354 NO LO(35)/Gtr 1% Or YM(24)/Open(1) Fee
115 324 321 NO LO(27)/Defeasance(92)/Open(1) Fee
Seller Loan Administrative Due
ID Number Property Name Loan Seller Fee Rate Date Grace Period Letter of Credit
------ ------------- ----------------------------------- ------------- ---------------- ------ -------------- ------------------
3 38308 The Xxxxxx Center BSCMI 0.0329% 1st 5 XX
0 00000 Xxxxxx Xxxx Xxxxx XXXXX 0.0329% 1st 5 XX
0 00000 Xxxxxxx Xxxxxx XXXXX 0.06290% 1st 0 XX
0 00000 Xxxxxx Xxxxxxxx Xxxxx XXXXX 0.07290% 1st 10 NO
10 00000 Xxxxxxx Xxxxx BSCMI 0.0329% 1st 5 XX
00 00000 Xxx Xxxxxxx Xxxxx XXXXX 0.0329% 1st 5 XX
00 00000 Xxxxxxxxxx Xxxxxxx BSCMI 0.0329% 1st 5 NO
29 39418 The International Village BSCMI 0.0329% 1st 5 NO
42 39625 Xxxxxx-Spruce Multifamily Portfolio BSCMI 0.0729% 1st 5 NO
42.1 00000-0 Xxxxxx Xxxxx Apartments BSCMI
42.2 00000-0 Xxxxxx Xxxxxx XXXXX
00 39808 Killearn Shopping Center BSCMI 0.0329% 1st 5 NO
54 39578 Cedar Springs Crossing BSCMI 0.0329% 1st 5 NO
55 00000 Xxxxxx Xxxxxxx BSCMI 0.0329% 1st 5 NO
56 00000 Xxxxx Xxxxx BSCMI 0.03290% 1st 5 NO
63 39226 0000 Xxxx 00xx Xxxxxx BSCMI 0.0329% 1st 5 XX
00 00000 000 Xxxxx Xxxx Xxxxx XXXXX 0.0329% 1st 5 NO
66 38795 00 Xxxxx Xxxxxx BSCMI 0.03290% 1st 5 NO
67 38189 Bon Marche BSCMI 0.03290% 1st 5 NO
68 38801 0000 Xxxxxx Xxxxxx BSCMI 0.03290% 1st 5 XX
00 00000 Xxxxxxxx Xxxxxx BSCMI 0.0329% 1st 5 NO
72 36752 Federal Trust Building BSCMI 0.1229% 1st 5 NO
74 38060 Lowe's Ontario Ohio BSCMI 0.0329% 1st 5 NO
76 37226 CompUSA Lombard BSCMI 0.03290% 1st 0 XX
00 00000 Xxxx 0 Xxxxxxx XXXXX 0.03290% 1st 5 NO
78 38704 Huntington National Center BSCMI 0.03290% 1st 5 NO
79 38798 2585-2593 Grand Concourse BSCMI 0.0329% 1st 5 XX
00 00000 Xxxxxxxxxx Xxxxx BSCMI 0.0329% 1st 5 XX
00 00000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx XXXXX 0.0329% 1st 5 NO
94 38796 0000 Xxxxxxxxxx Xxxxxx BSCMI 0.0329% 1st 5 NO
96 38061 BJ's Geneva New York BSCMI 0.03290% 1st 5 XX
00 00000 Xxxx Xxxxxx Xxxxx XXXXX 0.0329% 1st 5 YES
101 38989 0000-0000 Xxxx Xxxxxx BSCMI 0.0329% 1st 5 NO
103 39216 FedEx Ocala BSCMI 0.0329% 1st 5 NO
105 38623 Morningside Center BSCMI 0.03290% 1st 5 NO
106 38797 1916 Grand Concourse BSCMI 0.03290% 1st 5 NO
114 38522 0 Xxxxx 00xx Xxxxxx BSCMI 0.03290% 1st 5 NO
115 39218 FedEx Winona BSCMI 0.03290% 1st 5 NO
Initial
Guarantor/ Hospitality Master
ID Letter of Credit Description Recourse Property Servicer
------ ------------------------------------ ------------ ------------- --------------
3 NO NO Xxxxx Fargo
4 NO NO Xxxxx Fargo
6 NO NO Xxxxx Fargo
7 NO NO Xxxxx Fargo
10 NO NO Xxxxx Fargo
16 NO NO Xxxxx Fargo
28 NO NO Xxxxx Fargo
29 NO NO Xxxxx Fargo
42 NO NO Xxxxx Fargo
42.1
42.2
52 NO NO Xxxxx Fargo
54 NO NO Xxxxx Fargo
55 NO NO Xxxxx Fargo
56 NO NO Xxxxx Fargo
63 NO NO Xxxxx Fargo
65 NO NO Xxxxx Fargo
66 NO NO Xxxxx Fargo
67 NO NO Xxxxx Fargo
68 NO NO Xxxxx Fargo
69 NO NO Xxxxx Fargo
72 NO NO Xxxxx Fargo
74 NO NO Xxxxx Fargo
76 NO NO Xxxxx Fargo
77 NO NO Xxxxx Fargo
78 NO NO Xxxxx Fargo
79 NO NO Xxxxx Fargo
80 NO NO Xxxxx Fargo
92 NO NO Xxxxx Fargo
94 NO NO Xxxxx Fargo
96 NO NO Xxxxx Fargo
99 Letter of Credit for Social Security NO NO Xxxxx Fargo
Administration Rollover Reserve
101 NO NO Xxxxx Fargo
103 NO NO Xxxxx Fargo
105 NO NO Xxxxx Fargo
106 NO NO Xxxxx Fargo
114 NO NO Xxxxx Fargo
115 NO NO Xxxxx Fargo
SCHEDULE I-C
SCHEDULE OF WFB POOLED MORTGAGE LOANS
S-I-C-1
Seller Loan
ID Number Property Name Address City State
------ --------------- ------------------------------- ------------------------------------------- ----------------- ------
2 510901455 Two Commerce Square 0000 Xxxxxx Xxxxxx Xxxxxxxxxxxx XX
8 510901361 Pine Lakes Country Club 00000 Xxxx Xxxxx Xxxxxxxxx Xxxxx Xxxx Xxxxx XX
13 310901352 Heights Plaza 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx XX
14 310901369 Pacific Town Center 616, 702, 718, 730, 744 and 000 X. Xxxxxx Xxxxxxxx XX
Lane
17 510901364 Heritage Village 0000 Xxxxx Xxxx Xxxx Xxxxx XX
19 310901401 Marketplace at Arundel Xxxxx 0000-0000 Xxxxxxx Xxxxx Xxxx Hanover MD
21 310901321 Albertville Crossing 0000 XxXxxxxx Xxx XX Xxxxxxxxxxx XX
22 610901341 Market on Green 000 Xxxx Xxxxx Xxxxx Xxxx Xxxxx XX
27 310901388 Amdocs 2101, 2109, 2215, 2301 and 0000 Xxx Xxxxx Xxxxxxxxx XX
32 310901345 Valley Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
34 310901374 Xxx Xxxxxxx Xxxxxx X. Xxxxxx Xxxxxx and E. Prosperity Avenue Tulare CA
38 310901209 Plaza Lawrence Phase I NEC Xxxx Xxxxxx & 00xx Xxxxxx Xxxxxxxx XX
43 510901384 Westwood Village 0000 Xxxxx 0000 Xxxx Xxxx Xxxx XX
46 310901208 International Trade Center 2 & 000 XxXxxxxxx Xxxxx & 2409 Peppermill Drive Glen Burnie MD
4
00 000000000 Madrone Mobile Estates 000 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX
53 310901387 A-American Monterey Park 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxx XX
57 310901373 Park Plaza Shopping Center 000 - 000 Xxxxxxxx Xxxxxx Xxxxx XX
58 510901365 Quail Xxxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxxxx XX
59 310901343 48th Xx. Xxxxxxxxxx Xxxxxxxx 0000-0000 00xx Xxxxxx Xxxxxx XX
61 510901362 Falcon Wood Village 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX
70 310901377 Best Buy - Room Store Mesa 0000 X. Xxxxxxxx Xxxxxx Xxxx XX
82 410901385 A-American Sparks 000 Xxxxxxxxx Xxx Xxxxxx XX
86 510901391 Carefree Manor 00000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
87 410901390 A-American McCarran 0000 Xx. XxXxxxxx Xxxxxxxxx Xxxx XX
89 410901132 Longs Drug Store - Stanford 0000 Xxxxxxxx Xxxxx Xxxx Xxxxxxx XX
Ranch
90 410901407 Wood Xxxxx Xxxx Xxxxxxxxxx 00000 Xxxxxxxxxxx Xxxxx Xxxxx Xxxxx XX
91 410901392 A-American Gardnerville 0000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX
93 620901164 Xxxxx Xxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx XX
98 410901389 A-American Selmi 0000 Xxxxx Xxxxx Xxxx XX
100 620901399 Lexington Village Shopping 000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX
Center
112 410901417 Grand Prairie Plaza 0000 Xxxxxxxxxx Xxxxxxx 00 Xxxxx Xxxxxxx XX
P&I Monthly
Seller Loan Original Cut-off Date Debt
ID Number Property Name Zip Code Balance Balance Service
------ --------------- ------------------------------- ---------- ---------- -------------- ---------------
2 510901455 Xxx Xxxxxxxx Xxxxxx 00000 66,000,000 64,711,587 561,536.03
8 510901361 Xxxx Xxxxx Xxxxxxx Xxxx 00000 31,499,536 31,361,479 175,897.72
00 000000000 Xxxxxxx Xxxxx 00000 16,400,000 16,366,269 96,645.66
14 310901369 Xxxxxxx Xxxx Xxxxxx 00000 16,000,000 15,951,879 93,006.06
17 510901364 Xxxxxxxx Xxxxxxx 00000 13,520,000 13,520,000 81,233.16
19 310901401 Marketplace at Arundel Xxxxx 21076 12,400,000 12,374,872 73,691.81
21 310901321 Xxxxxxxxxxx Xxxxxxxx 00000 12,000,000 11,964,329 70,181.28
22 610901341 Market on Green 27260 12,000,000 11,926,185 87,781.34
27 310901388 Amdocs 61820 10,000,000 9,971,135 59,377.65
32 310901345 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 00000 9,100,000 9,100,000 53,105.13
34 310901374 Xxx Xxxxxxx Xxxxxx 00000 9,000,000 8,972,507 56,086.37
38 310901209 Xxxxx Xxxxxxxx Xxxxx X 00000 8,100,000 8,065,962 52,039.97
43 510901384 Xxxxxxxx Xxxxxxx 00000 7,600,000 7,566,690 42,439.44
46 310901208 International Trade Center 2 & 21061 6,960,000 6,922,955 43,216.71
4
00 000000000 Madrone Xxxxxx Xxxxxxx 00000 6,800,000 6,780,782 40,813.16
53 310901387 A-American Xxxxxxxx Xxxx 00000 5,875,000 5,856,745 36,182.97
57 310901373 Xxxx Xxxxx Xxxxxxxx Xxxxxx 00000 5,300,000 5,279,883 31,980.92
58 510901365 Xxxxx Xxxxxxx 00000 5,280,000 5,280,000 31,724.19
59 310901343 00xx Xx. Xxxxxxxxxx Xxxxxxxx 00000 5,250,000 5,233,761 32,427.98
61 510901362 Falcon Xxxx Xxxxxxx 00000 5,200,000 5,200,000 32,278.16
70 310901377 Best Buy - Xxxx Xxxxx Xxxx 00000 4,200,000 4,191,460 24,911.73
82 410901385 A-American Sparks 89434 3,515,000 3,503,590 21,042.83
86 510901391 Carefree Manor 85050 3,397,513 3,397,513 19,751.49
87 410901390 A-American McCarran 89512 3,360,000 3,349,093 20,114.91
89 410901132 Longs Drug Store - Stanford 95765 3,350,000 3,305,735 20,973.96
Ranch
90 410901407 Xxxx Xxxxx Xxxx Xxxxxxxxxx 00000 3,300,000 3,288,897 19,291.47
91 410901392 A-American Gardnerville 89410 3,200,000 3,189,613 19,157.05
93 620901164 Xxxxx Xxxxx Xxxxxx Xxxxxxxx 00000 3,100,000 3,064,208 19,502.30
98 410901389 A-American Selmi 89512 2,700,000 2,691,236 16,163.76
100 620901399 Xxxxxxxxx Xxxxxxx Xxxxxxxx 00000 2,500,000 2,495,088 15,117.59
Center
112 410901417 Xxxxx Xxxxxxx Xxxxx 00000 1,840,000 1,837,024 11,810.20
Seller Loan IO Monthly Mortgage Interest
ID Number Property Name Debt Service Rate Accrual Basis
------ --------------- ------------------------------- -------------- ------------ ---------------
2 510901455 Two Commerce Square 6.3000% Actual/360
8 510901361 Pine Lakes Country Club 5.3500% Actual/360
13 310901352 Heights Plaza 5.8400% Actual/360
14 310901369 Pacific Town Center 5.7140% Actual/360
17 510901364 Heritage Village 68,767.35 6.0200% Actual/360
19 310901401 Marketplace at Arundel Xxxxx 5.9180% Actual/360
21 310901321 Albertville Crossing 5.7700% Actual/360
22 610901341 Market on Green 6.2600% Actual/360
27 310901388 Amdocs 5.9100% Actual/360
32 310901345 Valley Plaza Shopping Center 5.7500% Actual/360
34 310901374 The Village Center 5.6500% Actual/360
38 310901209 Plaza Xxxxxxxx Phase I 5.9700% Actual/360
43 510901384 Westwood Village 5.3500% Actual/360
46 310901208 International Trade Xxxxxx 0 & 0.0000% Xxxxxx/000
0
00 000000000 Xxxxxxx Xxxxxx Xxxxxxx 6.0100% Actual/360
53 310901387 A-American Monterey Park 5.5300% Actual/360
57 310901373 Park Plaza Shopping Center 6.0600% Actual/360
58 510901365 Quail Xxxxxxx 26,855.89 6.0200% Actual/360
59 310901343 48th St. Industrial Building 5.5600% Actual/360
61 510901362 Falcon Wood Village 27,797.79 6.3270% Actual/360
70 310901377 Best Buy - Room Store Mesa 5.9000% Actual/360
82 410901385 A-American Sparks 5.2400% Actual/360
86 510901391 Carefree Manor 16,405.39 5.7150% Actual/360
87 410901390 A-American McCarran 5.2400% Actual/360
89 410901132 Longs Drug Store - Stanford 5.7000% Actual/360
Ranch
90 410901407 Wood River Park Apartments 5.0000% Actual/360
91 410901392 A-American Gardnerville 5.2400% Actual/360
93 620901164 Union Plaza Office Building 5.7500% Actual/360
98 410901389 A-American Selmi 5.2400% Actual/360
100 620901399 Lexington Village Shopping 6.0800% Actual/360
Center
112 410901417 Grand Prairie Plaza 5.9600% Actual/360
Original Term to
ARD Loan Maturity Date Maturity or ARD
ID Seller Loan Number Property Name (Y/N) or ARD (mos.)
------ ------------------- ---------------------------------- ---------- ---------------- -------------------
2 510901455 Two Commerce Square No 5/9/2013 117
8 510901361 Pine Lakes Country Club No 11/1/2008 60
13 310901352 Heights Plaza No 1/1/2014 120
14 310901369 Pacific Town Center No 12/1/2013 120
17 510901364 Heritage Village No 11/1/2013 120
19 310901401 Marketplace at Arundel Xxxxx No 1/1/2014 120
21 310901321 Albertville Crossing No 12/1/2013 120
22 610901341 Market on Green No 12/1/2013 120
27 310901388 Amdocs No 12/1/2013 120
32 310901345 Valley Plaza Shopping Center No 3/1/2014 120
34 310901374 The Village Center No 1/1/2014 120
38 310901209 Plaza Xxxxxxxx Phase I No 12/1/2013 120
43 510901384 Westwood Village No 11/1/2008 60
46 310901208 International Trade Xxxxxx 0 & 0 Xx 0/0/0000 000
00 000000000 Xxxxxxx Xxxxxx Xxxxxxx No 12/1/2013 120
53 310901387 A-American Monterey Park No 1/1/2009 60
57 310901373 Park Plaza Shopping Center No 11/1/2013 120
58 510901365 Quail Xxxxxxx No 11/1/2013 120
59 310901343 48th St. Industrial Building No 1/1/2014 120
61 510901362 Falcon Wood Village No 11/1/2015 144
70 310901377 Best Buy - Room Store Mesa No 1/1/2014 120
82 410901385 A-American Sparks No 1/1/2009 60
86 510901391 Carefree Manor No 11/1/2010 84
87 410901390 A-American McCarran No 1/1/2009 60
89 410901132 Longs Drug Store - Stanford No 6/1/2013 000
Xxxxx
00 000000000 Xxxx Xxxxx Xxxx Apartments No 1/1/2009 60
91 410901392 A-American Gardnerville No 1/1/2009 60
93 620901164 Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xx 0/0/0000 120
98 410901389 A-American Selmi No 1/1/2009 60
100 620901399 Lexington Village Shopping No 1/1/2014 120
Center
112 410901417 Grand Prairie Plaza No 2/1/2014 120
Stated
Remaining Crossed
Term to Original Remaining With
Maturity or Amortization Amortization Other
ID Seller Loan Number Property Name ARD (mos.) Term (mos.) Term (mos.) Loans
------ ------------------- ---------------------------------- --------------- --------------- ---------------- ---------
2 510901455 Two Commerce Square 110 319 312 NO
8 510901361 Pine Lakes Country Club 56 360 356 NO
13 310901352 Heights Plaza 118 360 358 NO
14 310901369 Pacific Town Center 117 360 357 NO
17 510901364 Heritage Village 116 360 360 NO
19 310901401 Marketplace at Arundel Xxxxx 118 360 358 NO
21 310901321 Albertville Crossing 117 360 357 NO
22 610901341 Market on Green 117 240 237 NO
27 310901388 Amdocs 117 360 357 NO
32 310901345 Valley Plaza Shopping Center 120 360 360 NO
34 310901374 The Village Center 118 300 298 NO
38 310901209 Plaza Xxxxxxxx Phase I 117 300 297 NO
43 510901384 Westwood Village 56 360 356 NO
46 310901208 International Trade Center 2 & 4 114 360 354 NO
00 000000000 Madrone Mobile Estates 117 360 357 NO
53 310901387 A-American Monterey Park 58 300 298 NO
57 310901373 Park Plaza Shopping Center 116 360 356 NO
58 510901365 Quail Xxxxxxx 116 360 360 NO
59 310901343 48th Xx. Xxxxxxxxxx Xxxxxxxx 000 000 000 XX
61 510901362 Falcon Wood Village 140 360 360 NO
70 310901377 Best Buy - Room Store Mesa 118 360 358 NO
82 410901385 A-American Sparks 58 300 298 NO
86 510901391 Carefree Manor 80 360 360 NO
87 410901390 A-American McCarran 58 300 298 NO
89 410901132 Longs Drug Store - Stanford 111 300 291 NO
Ranch
90 410901407 Wood River Park Apartments 58 300 298 NO
91 410901392 A-American Gardnerville 58 300 298 NO
93 620901164 Union Xxxxx Xxxxxx Xxxxxxxx 000 000 000 XX
98 410901389 A-American Selmi 58 300 298 NO
100 620901399 Lexington Village Shopping 118 360 358 NO
Center
112 410901417 Grand Prairie Plaza 119 300 299 NO
Crossed Prepayment
Loan Provisions
ID Seller Loan Number Property Name ID (# of payments) Interest
------ ------------------- ---------------------------------- -------- ------------------------------ --------
2 510901455 Two Commerce Square LO(31)/Defeasance(83)/Open(3) Fee
8 510901361 Pine Lakes Country Club LO(28)/Defeasance(28)/Open(4) Fee
13 310901352 Heights Plaza LO(35)/Defeasance(83)/Open(2) Fee
14 310901369 Pacific Town Center LO(35)/Defeasance(81)/Open(4) Fee
17 510901364 Heritage Village LO(28)/Defeasance(88)/Open(4) Fee
19 310901401 Marketplace at Arundel Xxxxx LO(26)/Defeasance(92)/Open(2) Fee
21 310901321 Albertville Crossing LO(35)/Defeasance(81)/Open(4) Fee
22 610901341 Market on Green LO(35)/Defeasance(81)/Open(4) Fee
27 310901388 Amdocs LO(35)/Defeasance(81)/Open(4) Fee
32 310901345 Valley Plaza Shopping Center LO(35)/Defeasance(81)/Open(4) Fee
34 310901374 The Village Center LO(35)/Defeasance(81)/Open(4) Fee
38 310901209 Plaza Xxxxxxxx Phase I LO(35)/Defeasance(81)/Open(4) Fee
43 510901384 Westwood Village LO(28)/Defeasance(28)/Open(4) Fee
46 310901208 International Trade Xxxxxx 0 & 0 XX(00)/Xxxxxxxxxx(00)/Xxxx(0) Xxx
00 000000000 Xxxxxxx Xxxxxx Xxxxxxx LO(36)/Defeasance(80)/Open(4) Fee
53 310901387 A-American Monterey Park LO(35)/Defeasance(21)/Open(4) Fee
57 310901373 Park Plaza Shopping Center LO(35)/Defeasance(81)/Open(4) Fee
58 510901365 Quail Xxxxxxx LO(28)/Defeasance(88)/Open(4) Fee
59 310901343 48th St. Industrial Building LO(35)/Defeasance(81)/Open(4) Fee
61 510901362 Falcon Wood Village LO(28)/Defeasance(112)/Open(4) Fee
70 310901377 Best Buy - Room Store Mesa LO(35)/Defeasance(81)/Open(4) Fee
82 410901385 A-American Sparks LO(35)/Flex(21)/Open(4) Fee
86 510901391 Carefree Manor LO(28)/Defeasance(52)/Open(4) Fee
87 410901390 A-American McCarran LO(35)/Flex(21)/Open(4) Fee
89 410901132 Longs Drug Store - Stanford LO(35)/Defeasance(78)/Open(7) Fee
Ranch
90 410901407 Wood River Park Apartments LO(35)/Flex(21)/Open(4) Fee
91 410901392 A-American Gardnerville LO(35)/Flex(21)/Open(4) Fee
93 620901164 Union Plaza Office Building LO(35)/Flex(81)/Open(4) Fee
98 410901389 A-American Selmi LO(35)/Flex(21)/Open(4) Fee
100 620901399 Lexington Village Shopping LO(35)/Defeasance(78)/Open(7) Fee
Center
112 410901417 Grand Prairie Plaza LO(35)/Flex(81)/Open(4) Fee
Administrative Fee Due
ID Seller Loan Number Property Name Loan Seller Rate Date Grace Period
----- ------------------- ---------------------------------- ------------- -------------------- ------ --------------
2 510901455 Two Commerce Square WFB 0.0429% 9th 0
8 510901361 Pine Lakes Country Club WFB 0.0329% 1st 10
13 310901352 Heights Plaza WFB 0.03290% 1st 5
14 310901369 Pacific Town Center WFB 0.03290% 1st 5
17 510901364 Heritage Village WFB 0.0329% 1st 10
19 310901401 Marketplace at Arundel Xxxxx WFB 0.0329% 1st 5
21 310901321 Albertville Crossing WFB 0.0329% 1st 5
22 610901341 Market on Green WFB 0.0829% 1st 15
27 310901388 Amdocs WFB 0.0329% 1st 5
32 310901345 Valley Plaza Shopping Center WFB 0.0329% 1st 5
34 310901374 The Village Center WFB 0.0829% 1st 5
38 310901209 Plaza Xxxxxxxx Phase I WFB 0.0329% 1st 5
43 510901384 Westwood Village WFB 0.0329% 1st 10
46 310901208 Xxxxxxxxxxxxx Xxxxx Xxxxxx 0 & XXX 0.0000% 1st 5
4
00 000000000 Madrone Mobile Estates WFB 0.08290% 1st 8
53 310901387 A-American Monterey Park WFB 0.0329% 1st 5
57 310901373 Park Plaza Shopping Center WFB 0.0329% 1st 5
58 510901365 Quail Xxxxxxx WFB 0.03290% 1st 10
59 310901343 00xx Xx. Xxxxxxxxxx Xxxxxxxx XXX 0.03290% 1st 5
61 510901362 Falcon Wood Village WFB 0.03290% 1st 10
70 310901377 Best Buy - Room Store Mesa WFB 0.0529% 1st 5
82 410901385 A-American Sparks WFB 0.0529% 1st 5
86 510901391 Carefree Manor WFB 0.0329% 1st 10
87 410901390 A-American McCarran WFB 0.05290% 1st 5
89 410901132 Longs Drug Store - Stanford WFB 0.05290% 1st 5
Ranch
90 410901407 Wood River Park Apartments WFB 0.05290% 1st 5
91 410901392 A-American Gardnerville WFB 0.0529% 1st 5
93 620901164 Xxxxx Xxxxx Xxxxxx Xxxxxxxx XXX 0.0000% 1st 5
98 410901389 A-American Selmi WFB 0.1029% 1st 5
100 620901399 Lexington Village Shopping WFB 0.1529% 1st 5
Center
112 410901417 Grand Prairie Plaza WFB 0.10290% 1st 5
Guarantor/
ID Seller Loan Number Property Name Letter of Credit Letter of Credit Description Recourse
----- ------------------- ---------------------------------- ------------------ ---------------------------- -------------
2 510901455 Two Commerce Square NO NO
8 510901361 Pine Lakes Xxxxxxx Xxxx XX XX
00 000000000 Xxxxxxx Xxxxx NO NO
14 310901369 Pacific Town Xxxxxx XX XX
00 000000000 Xxxxxxxx Xxxxxxx NO NO
19 310901401 Marketplace at Arundel Xxxxx NO NO
21 310901321 Albertville Crossing YES $141,250 Development Fee NO
22 610901341 Market on Green NO NO
27 310901388 Amdocs NO NO
32 310901345 Valley Plaza Shopping Center NO NO
34 310901374 The Village Center XX XX
00 000000000 Xxxxx Xxxxxxxx Xxxxx I NO NO
43 510901384 Westwood Village NO NO
46 310901208 International Trade Xxxxxx 0 & XX XX
0
00 000000000 Xxxxxxx Xxxxxx Xxxxxxx XX XX
00 000000000 X-Xxxxxxxx Xxxxxxxx Xxxx XX XX
00 000000000 Xxxx Xxxxx Xxxxxxxx Xxxxxx NO NO
58 510901365 Quail Xxxxxxx NO NO
59 310901343 48th St. Industrial Building NO NO
61 510901362 Falcon Wood Village NO NO
70 310901377 Best Buy - Room Store Mesa NO NO
82 410901385 A-American Sparks NO NO
86 510901391 Carefree Manor NO NO
87 410901390 A-American McCarran NO NO
89 410901132 Longs Drug Store - Stanford NO NO
Ranch
90 410901407 Wood River Park Apartments NO NO
91 410901392 A-American Gardnerville NO NO
93 620901164 Union Plaza Office Building NO NO
98 410901389 A-American Xxxxx XX XX
000 000000000 Xxxxxxxxx Xxxxxxx Shopping NO NO
Center
112 410901417 Grand Prairie Plaza NO NO
Initial
Hospitality Master
ID Seller Loan Number Property Name Property Servicer
----- ------------------- ---------------------------------- ------------- ------------
2 510901455 Two Commerce Square NO GMAC
8 510901361 Pine Lakes Country Club NO Xxxxx Fargo
13 310901352 Heights Plaza NO Xxxxx Fargo
14 310901369 Pacific Town Center NO Xxxxx Fargo
17 510901364 Heritage Village NO Xxxxx Fargo
19 310901401 Marketplace at Arundel Xxxxx NO Xxxxx Fargo
21 310901321 Albertville Crossing NO Xxxxx Fargo
22 610901341 Market on Green NO Xxxxx Fargo
27 310901388 Amdocs NO Xxxxx Fargo
32 310901345 Valley Plaza Shopping Center NO Xxxxx Fargo
34 310901374 Xxx Xxxxxxx Xxxxxx XX Xxxxx Xxxxx
00 310901209 Plaza Xxxxxxxx Phase I NO Xxxxx Fargo
43 510901384 Westwood Village NO Xxxxx Fargo
46 310901208 International Trade Xxxxxx 0 & XX Xxxxx Xxxxx
0
00 000000000 Xxxxxxx Xxxxxx Xxxxxxx NO Xxxxx Fargo
53 310901387 A-American Monterey Park NO Xxxxx Fargo
57 310901373 Park Plaza Shopping Center NO Xxxxx Fargo
58 510901365 Quail Xxxxxxx NO Xxxxx Fargo
59 310901343 48th St. Industrial Building NO Xxxxx Fargo
61 510901362 Falcon Wood Village NO Xxxxx Fargo
70 310901377 Best Buy - Room Store Mesa NO Xxxxx Fargo
82 410901385 A-American Sparks NO Xxxxx Fargo
86 510901391 Carefree Manor NO Xxxxx Fargo
87 410901390 A-American McCarran NO Xxxxx Fargo
89 410901132 Longs Drug Store - Stanford NO Xxxxx Fargo
Ranch
90 410901407 Wood River Park Apartments NO Xxxxx Fargo
91 410901392 A-American Gardnerville NO Xxxxx Fargo
93 620901164 Union Plaza Office Building NO Xxxxx Fargo
98 410901389 A-American Selmi NO Xxxxx Fargo
100 620901399 Lexington Village Shopping NO Xxxxx Fargo
Center
112 410901417 Grand Prairie Plaza NO Xxxxx Fargo
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
(under Section 2.02(a))
[There are no exceptions.]
S-II-1
SCHEDULE III
SCHEDULE OF DESIGNATED SUB-SERVICERS
Control
Number Pooled Primary Term.
(Pros- Pooled Mortgage Mortgage Cut-off Date Servicing Without
pectus Loan Seller Loan Principal Fee Cause
ID) Number Loan/Property Name Seller Balance Rate Fee
--------- ---------------- --------------------------------------- ------------- -------------- ----------- --------
72 36752 Federal Trust Building BSCMI $4,038,129 0.100% None
5 6105208 PMCF $42,853,667 0.020% None
Great Northern Mall
9 6105243 Valley Forge Towers Apts. North PMCF $24,500,000 0.040% None
11 6105253 Villa Oaks Shopping Center PMCF $18,963,239 0.050% None
15 6105155 Westbury Village Townhomes PMCF $15,300,000 0.050% None
18 6105197 Braelinn Village Shopping Center PMCF $12,773,773 0.050% None
23 6105248 Mansions of Tech Xx XX PMCF $11,200,000 0.030% None
33 6105237 Wood Colony Plaza PMCF $8,971,765 0.050% None
37 6105224 Parkway Apartments PMCF $8,257,522 0.020% None
39 6105088 Xxxxx'x Xxxx Plaza PMCF $7,842,440 0.050% None
47 6105223 Ryder Logistics PMCF $6,774,771 0.050% None
51 6105146 Xxxxxxx Commercial Center PMCF $5,992,777 0.050% None
64 6105174 Wesleyan Station Shopping Center PMCF $5,079,121 0.050% None
83 6105136 000 Xxxxxx Xxxxxx XXXX $3,484,293 0.050% None
84 6105163 American Self Storage PMCF $3,485,559 0.050% None
88 6105213 Walgreens-Post Falls PMCF $3,343,481 0.050% None
95 6105054 Crossroads Shopping Center PMCF $2,747,743 0.050% None
108 6105183 00xx Xxxxxx Storage PMCF $1,944,331 0.050% None
Control
Number
(Pros- Pooled Mortgage
pectus Loan Seller
ID) Number Loan/Property Name Primary Servicer
--------- ---------------- --------------------------------------- ---------------------------------------
72 36752 Federal Trust Building GMAC Commercial Mortgage Corporation
5 6105208 Prudential Mortgage Capital Company LLC
Great Northern Mall ("PMCC")
9 6105243 Valley Forge Towers Apts. North PMCC
11 6105253 Villa Oaks Shopping Center PMCC
15 6105155 Westbury Village Townhomes PMCC
18 6105197 Braelinn Village Shopping Center PMCC
23 6105248 Mansions of Tech Xx XX PMCC
33 6105237 Wood Colony Plaza PMCC
37 6105224 Parkway Apartments PMCC
39 6105088 Xxxxx'x Xxxx Plaza PMCC
47 6105223 Ryder Logistics PMCC
51 6105146 Xxxxxxx Commercial Center PMCC
64 6105174 Wesleyan Station Shopping Center PMCC
83 6105136 000 Xxxxxx Xxxxxx PMCC
84 6105163 American Self Storage PMCC
88 6105213 Walgreens-Post Falls PMCC
95 6105054 Crossroads Shopping Center PMCC
108 6105183 75th Avenue Storage PMCC
S-III-1
SCHEDULE IV
REFERENCE RATES
S-IV-1
Interest Accrual Period(1) Reference Rate Interest Accrual Period(1) Reference Rate
----------------------------- -------------------- ------------------------------ ------------------
March 2004 5.69986% March 2008 5.68499%
April 2004 5.53363 April 2008 5.52042
May 2004 5.69931 May 2008 5.68446
June 2004 5.53314 June 2008 5.51996
July 2004 5.69876 July 2008 5.68391
August 2004 5.69849 August 2008 5.68365
September 2004 5.53240 September 2008 5.52011
October 2004 5.69793 October 2008 5.68473
November 2004 5.53189 November 2008 5.52937
December 2004 5.53163 December 2008 5.52910
January 2005 5.53139 January 2009 5.64254
February 2005 5.53175 February 2009 5.70803
March 2005 5.69651 March 2009 5.88910
April 2005 5.53063 April 2009 5.70442
May 2005 5.69596 May 2009 5.88910
June 2005 5.53014 June 2009 5.70443
July 2005 5.69540 July 2009 5.88911
August 2005 5.69513 August 2009 5.88911
September 2005 5.52941 September 2009 5.70444
October 2005 5.69457 October 2009 5.88911
November 2005 5.52890 November 2009 5.70445
December 2005 5.52862 December 2009 5.70445
January 2006 5.52835 January 2010 5.70446
February 2006 5.52877 February 2010 5.70794
March 2006 5.69296 March 2010 5.89257
April 2006 5.52743 April 2010 5.70704
May 2006 5.69229 May 2010 5.89258
June 2006 5.52683 June 2010 5.70705
July 2006 5.69161 July 2010 5.89259
August 2006 5.69128 August 2010 5.90307
September 2006 5.52592 September 2010 5.71622
October 2006 5.69059 October 2010 5.90115
November 2006 5.52530 November 2010 5.71448
December 2006 5.52497 December 2010 5.71451
January 2007 5.52469 January 2011 5.73637
February 2007 5.52515 February 2011 5.73741
March 2007 5.68886 March 2011 5.92864
April 2007 5.52377 April 2011 5.73645
May 2007 5.68819 May 2011 5.92869
June 2007 5.52318 June 2011 5.73650
July 2007 5.68751 July 2011 5.92874
August 2007 5.68718 August 2011 5.92877
September 2007 5.52228 September 2011 5.73657
October 2007 5.68649 October 2011 5.92882
November 2007 5.52166 November 2011 5.73662
December 2007 5.68579 December 2011 5.92887
January 2008 5.52112 January 2011 5.73667
February 2008 5.52114 February 2011 5.73706
(1) Each interest accrual period relates to the distribution date in the
immediately following calendar month. For example, the March 2004
interest accrual period relates to the April 2004 distribution date.
S-IV-2
SCHEDULE V
BORROWER THIRD-PARTY BENEFICIARIES
(under Section 2.03)
The Borrowers under the Pooled Mortgage Loans secured by the Mortgaged
Properties identified on the Pooled Mortgage Loan Schedule as "Lion Industrial
Portfolio Pooled Mortgage Loans".
S-V-I
