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BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
GMAC COMMERCIAL MORTGAGE CORPORATION,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2001
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-TOP4
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS....................................................4
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS........................61
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST......................62
SECTION 1.4 INTERPRETATION................................................62
SECTION 1.5 ARD LOANS.....................................................62
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO A/B MORTGAGE LOANS............63
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS..................................64
SECTION 2.2 ACCEPTANCE BY TRUSTEE.........................................67
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL
DOCUMENT DEFECTS AND MATERIAL BREACHES OF
REPRESENTATIONS AND WARRANTIES................................70
SECTION 2.4 REPRESENTATIONS AND WARRANTIES................................76
SECTION 2.5 CONVEYANCE OF INTERESTS.......................................77
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES..............................................78
SECTION 3.2 REGISTRATION..................................................79
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.........................79
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.............84
SECTION 3.5 PERSONS DEEMED OWNERS.........................................85
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES.....................................................85
SECTION 3.7 BOOK-ENTRY CERTIFICATES.......................................85
SECTION 3.8 NOTICES TO CLEARING AGENCY....................................89
SECTION 3.9 DEFINITIVE CERTIFICATES.......................................89
ARTICLE IV
ADVANCES
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER...............................90
SECTION 4.2 SERVICING ADVANCES............................................90
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SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT..................91
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.................................92
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING
ADVANCES WITH RESPECT TO A MORTGAGE LOAN......................93
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST................93
SECTION 4.7 FISCAL AGENT TERMINATION EVENT................................95
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT..............................95
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT.......................96
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS........................................................96
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT...............................96
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS...................................................97
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND
INTEREST RESERVE ACCOUNT.....................................101
SECTION 5.3 DISTRIBUTION ACCOUNT, RESERVE ACCOUNT AND FLOATING
RATE ACCOUNT.................................................106
SECTION 5.4 PAYING AGENT REPORTS.........................................108
SECTION 5.5 PAYING AGENT TAX REPORTS.....................................110
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY......................................110
SECTION 6.2 REMIC I......................................................111
SECTION 6.3 REMIC II.....................................................112
SECTION 6.4 RESERVED.....................................................117
SECTION 6.5 REMIC III....................................................117
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND
SHORTFALLS DUE TO NONRECOVERABILITY..........................121
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS.................124
SECTION 6.8 ADJUSTMENT OF SERVICING FEES.................................124
SECTION 6.9 APPRAISAL REDUCTIONS.........................................125
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.....................125
SECTION 6.11 PREPAYMENT PREMIUMS..........................................125
SECTION 6.12 OTHER DISTRIBUTIONS..........................................126
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.................................................128
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SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT...................................130
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
NOT LIABLE FOR CERTIFICATES OR INTERESTS OR
MORTGAGE LOANS...............................................132
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
MAY OWN CERTIFICATES.........................................133
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT............................133
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL
AGENT OR THE PAYING AGENT....................................134
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT..............136
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR
PAYING AGENT.................................................137
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS
OR CUSTODIAN.................................................137
SECTION 7.10 AUTHENTICATING AGENTS........................................139
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.............................................140
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.............................................142
SECTION 7.13 COLLECTION OF MONEYS.........................................142
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.....................142
SECTION 7.15 NOTIFICATION TO HOLDERS......................................145
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT............................145
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT.........................................147
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.........................148
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER.....................149
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES...................149
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING..........................155
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES...............................157
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE,
TAXES AND OTHER..............................................157
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE........................160
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE
FILES........................................................163
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR THE
BENEFIT OF THE CERTIFICATEHOLDERS............................164
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SECTION 8.10 SERVICING COMPENSATION.......................................165
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS..................166
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE............................168
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT.......................................................169
SECTION 8.14 OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE
MORTGAGED PROPERTIES.........................................169
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF
THE MASTER SERVICER..........................................170
SECTION 8.16 RULE 144A INFORMATION........................................172
SECTION 8.17 INSPECTIONS..................................................173
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND
CONSENTS.....................................................173
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS............................176
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER..............................................177
SECTION 8.21 MERGER OR CONSOLIDATION......................................178
SECTION 8.22 RESIGNATION OF MASTER SERVICER...............................178
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER.....................................................179
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS.......................................................179
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS..........................182
SECTION 8.26 EXCHANGE ACT REPORTING.......................................184
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS.............................185
SECTION 8.28 TERMINATION..................................................185
SECTION 8.29 PROCEDURE UPON TERMINATION...................................187
SECTION 8.30 SWAP CONTRACT................................................189
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER...................................191
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER...................................192
SECTION 9.3 SUB-SERVICERS................................................193
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES...................193
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED
MORTGAGE LOANS; DUE-ON-ENCUMBRANCE CLAUSES...................195
SECTION 9.6 RELEASE OF MORTGAGE FILES....................................199
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE..................200
SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.............................................201
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.................................202
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.............203
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SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.........................204
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS....................205
SECTION 9.13 FORECLOSURE..................................................207
SECTION 9.14 OPERATION OF REO PROPERTY....................................207
SECTION 9.15 SALE OF REO PROPERTY.........................................211
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY...........................212
SECTION 9.17 RESERVED.....................................................212
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE................212
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.............212
SECTION 9.20 MERGER OR CONSOLIDATION......................................213
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER..............................213
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER.....................................................214
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER AND
OTHERS.......................................................214
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS..........................216
SECTION 9.25 RESERVED.....................................................218
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES........................218
SECTION 9.27 TAX REPORTING................................................218
SECTION 9.28 APPLICATION OF FUNDS RECEIVED................................218
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS.............................219
SECTION 9.30 TERMINATION..................................................219
SECTION 9.31 PROCEDURE UPON TERMINATION...................................221
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.............................222
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER AND PAYING AGENT....................................224
SECTION 9.34 RESERVED.....................................................225
SECTION 9.35 RESERVED.....................................................225
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.............................225
SECTION 9.37 OPERATING ADVISER; ELECTIONS.................................228
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER.................229
SECTION 9.39 DUTIES OF OPERATING ADVISER..................................229
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE.............................230
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR LIQUIDATION
OF ALL MORTGAGE LOANS........................................231
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST..........................233
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS....................234
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS..............................235
SECTION 11.2 ACCESS TO LIST OF HOLDERS....................................236
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SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES..............................236
ARTICLE XII
REMIC ADMINISTRATION
SECTION 12.1 REMIC ADMINISTRATION.........................................237
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES.......................243
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS..............................243
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS OF
REMIC STATUS.................................................243
SECTION 12.5 GRANTOR TRUST REPORTING......................................244
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT..................................244
SECTION 13.2 ENTIRE AGREEMENT.............................................244
SECTION 13.3 AMENDMENT....................................................244
SECTION 13.4 GOVERNING LAW................................................246
SECTION 13.5 NOTICES......................................................246
SECTION 13.6 SEVERABILITY OF PROVISIONS...................................247
SECTION 13.7 INDULGENCES; NO WAIVERS......................................247
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION........................248
SECTION 13.9 BENEFITS OF AGREEMENT........................................248
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.......................248
SECTION 13.11 COUNTERPARTS.................................................250
SECTION 13.12 INTENTION OF PARTIES.........................................250
SECTION 13.13 RECORDATION OF AGREEMENT.....................................251
SECTION 13.14 RATING AGENCY MONITORING FEES................................251
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICERS.........................251
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EXHIBITS AND SCHEDULES
EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Reserved
EXHIBIT A-5 Form of Class B Certificate
EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class R-I Certificate
EXHIBIT A-18 Form of Class R-II Certificate
EXHIBIT A-19 Form of Class R-III Certificate
EXHIBIT A-20 Form of Class X-1 Certificate
EXHIBIT A-21 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests
in Book-Entry Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Primary Servicing Agreement
EXHIBIT G-2 Form of Primary Servicing Agreement
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of EUROCLEAR or Clearstream Certificate (Section 3.7(d))
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid
("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (Xxxx Xxxxxxx)
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XXXXXXX X-0 Form of Mortgage Loan Purchase Agreement II (Xxxxx Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (BSF)
EXHIBIT K-5 Form of Mortgage Loan Purchase Agreement V (MSDWMC)
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of Operating Statement Analysis Report
EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a))
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special
Servicer (Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer
(Section 8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification (Section 8.3(h))
EXHIBIT AA Form of Xxxxx Fargo primary servicing agreement (Section
8.29(b))
SCHEDULE I JHREF Loan Schedule
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV BSF Loan Schedule
SCHEDULE V MSDWMC Loan Schedule
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts
(Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section
5.1(g) is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under
Section 2.3(a)
SCHEDULE IX Rates Used in Determination of Class X Pass-Through Rates
("Class X-1 Strip Rate" and "Class X-2 Strip Rate")
SCHEDULE X Mortgage Loans Secured By Mortgaged Properties Covered by
an Environmental Insurance Policy
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THIS POOLING AND SERVICING AGREEMENT is dated as of November 1, 2001
(this "Agreement") between BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., a
Delaware corporation, as depositor (the "Depositor"), XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as master servicer (the "Master Servicer"), GMAC COMMERCIAL
MORTGAGE CORPORATION, as special servicer (the "Special Servicer"), LASALLE BANK
NATIONAL ASSOCIATION, as trustee of the Trust (the "Trustee"), ABN AMRO BANK
N.V., only in its capacity as a fiscal agent pursuant to Article IV hereof (the
"Fiscal Agent") and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, only in
its capacity as paying agent (the "Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage Loans from
Principal Commercial Funding, LLC, as seller ("Principal"), Xxxx Xxxxxxx Real
Estate Finance, Inc., as seller ("JHREF"), Xxxxx Fargo Bank, National
Association, as seller ("Xxxxx Fargo"), Bear, Xxxxxxx Funding, Inc., as seller
("BSF") and Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc., as seller
("MSDWMC"), and will be the owner of the Mortgage Loans and the other property
being conveyed by it to the Trustee for inclusion in the Trust which is hereby
created. On the Closing Date, the Depositor will acquire (i) the REMIC I Regular
Interests and the Class R-I Certificate as consideration for its transfer to the
Trust of the Mortgage Loans; (ii) the REMIC II Regular Interests and the Class
R-II Certificates as consideration for its transfer of the REMIC I Regular
Interests to the Trust; (iii) the REMIC III Certificates and the Class A-2
Regular Interest as consideration for its transfer of the REMIC II Regular
Interests to the Trust and (iv) the Class A-2 Certificates as consideration for
its transfer of the Class A-2 Regular Interest and the Swap Contract to the
Trust. The Depositor has duly authorized the execution and delivery of this
Agreement to provide for the foregoing and the issuance of (A) the REMIC I
Regular Interests and the Class R-I Certificates representing in the aggregate
the entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests
and the Class R-II Certificates representing in the aggregate the entire
beneficial ownership of REMIC II, (C) the REMIC III Certificates and the Class
A-2 Regular Interest representing in the aggregate the entire beneficial
ownership of REMIC III and, in the case of the Class N Certificates, the Class N
Grantor Trust, and (D) the Class A-2 Certificates representing in the aggregate
the entire beneficial ownership of the Class A-2 Grantor Trust. All covenants
and agreements made by the Depositor and the Trustee herein with respect to the
Mortgage Loans and the other property constituting the Trust are for the benefit
of the Holders of the REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Certificates, the Class A-2 Regular Interest, the Residual
Certificates and the Swap Counterparty. The parties hereto are entering into
this Agreement, and the Trustee is accepting the trusts created hereby, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class A, Class B and Class C Certificates will be offered for sale
pursuant to the prospectus (the "Prospectus") dated April 25, 2001, as
supplemented by the preliminary prospectus supplement dated October 24, 2001
(together with the Prospectus, the "Preliminary Prospectus Supplement"), and as
further supplemented by the final prospectus supplement dated October 31, 2001
(together with the Prospectus, the "Final Prospectus Supplement"), and the Class
X-1, Class X-2, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L,
Class M, Class N, Class R-I, Class R-II and Class R-III Certificates will be
offered for sale pursuant to a Private Placement Memorandum dated October 31,
2001.
The following sets forth the Class designation, Pass-Through Rate,
initial Aggregate Certificate Balance (or initial Notional Amount) and Final
Scheduled Distribution Date for each Class of REMIC I Regular Interests and the
Class R-I Certificates comprising the interests in REMIC I, each Class of REMIC
II Regular Interests and the Class R-II Certificates comprising the interests in
REMIC II and each Class of REMIC III Certificates comprising the interests in
REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I Regular
Interest") will relate to a specific Mortgage Loan. Each Corresponding REMIC I
Regular Interest will have a pass-through rate equal to the REMIC I Net Mortgage
Rate of the related Mortgage Loan, an initial principal amount (the initial
"Certificate Balance") equal to the Scheduled Principal Balance as of the
Cut-Off Date (as herein defined) of the Mortgage Loan to which the Corresponding
REMIC I Regular Interest relates, and a latest possible maturity date set to the
Maturity Date (as defined herein) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates. The Class R-I Certificate will
be designated as the sole Class of residual interests in REMIC I and will have
no Certificate Balance and no Pass-Through Rate, but will be entitled to receive
the proceeds of any assets remaining in REMIC I after all Classes of REMIC I
Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
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REMIC III
Initial
Aggregate
REMIC III Certificate
Regular Initial Principal Final Scheduled
Interest Pass-Through Balance or Distribution
Designation Rate(a) Notional Amount Date(b)
----------- ------- --------------- -------
Class A-1 5.06% $389,161,000 December 15, 2010
Class A-2(c) 2.64% $60,000,000 March 15, 2011
Class A-3 5.61% $320,234,000 August 15, 2011
Class X-1 1.08% $902,516,290 July 15, 2021
Class X-2 1.61% $420,779,000 November 15, 2008
Class B 5.80% $24,819,000 August 15, 2011
Class C 6.05% $24,819,000 September 15, 2011
Class D 6.17% $9,025,000 September 15, 2011
Class E 6.47% $20,307,000 September 15, 2011
Class F 6.91% $9,025,000 September 15, 2011
Class G 6.00% $9,025,000 September 15, 2011
Class H 6.00% $9,025,000 November 15, 2011
Class J 6.00% $6,769,000 November 15, 2012
Class K 6.00% $4,513,000 March 15, 2014
Class L 6.00% $4,512,000 May 15, 2015
Class M 6.00% $2,257,000 December 15, 2015
Class N(d) 6.00% $9,025,290 July 15, 2021
Class R-III(e) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate." The initial
Pass-Through Rates shown above for Class X-1 and Class X-2 are
approximate.
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments)
will be made on the Mortgage Loans in accordance with their terms (except
that each ARD Loan will be prepaid in full on its Anticipated Repayment
Date).
(c) The Class A-2 Certificates are not regular interests in a REMIC but
represent ownership of the beneficial interests in the Class A-2 Grantor
Trust, which contains (i) the Class A-2 Regular Interest (bearing a fixed
rate of interest at 5.50% per annum) and the Swap Contract and all
payments under the Class A-2 Regular Interest and the Swap Contract, (ii)
all funds and assets from time to time on deposit in the Floating Rate
Account and (iii) proceeds of all of the foregoing. The parties intend
that the portion of the Trust representing the Class A-2 Grantor Trust
shall be treated as a grantor trust under Subpart E of Part 1 of
Subchapter J of Chapter 1 of Subtitle A of the Code.
(d) The Class N Certificates represent ownership of one REMIC III Regular
Interest (entitled to the principal and interest set forth above). In
addition, the Class N Certificates will be entitled to Excess Interest
(which will not be a part of any REMIC Pool). The parties intend that (i)
the portion of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under Subpart E
of Part 1 of Subchapter J of Chapter 1 of Subtitle A of the Code and (ii)
the Class N Certificates (other than the portion thereof consisting of the
REMIC III Regular Interest) shall represent undivided beneficial interests
in the portion of the Trust consisting of the entitlement to receive
Excess Interest (the "Excess Interest Grantor Trust").
(e) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
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As of the Cut-Off Date, the Mortgage Loans had an Aggregate Principal
Balance of $902,516,290.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the second paragraph of Section 12.1(a) hereof consisting of the
REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will make an election for the segregated pool of assets
described in the third paragraph of Section 12.1(a) hereof consisting of the
REMIC II Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (and, in the case of the Class N Certificate, the Class N REMIC
Interest represented by the Class N Certificate) will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates will be
designated as the sole Class of "residual interests" in REMIC III for purposes
of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying Agent on
behalf of the Trustee will treat: (i) the segregated pool of assets consisting
of the Class A-2 Regular Interest, the Swap Contract and such amounts as shall
be held from time to time in the Floating Rate Account and (ii) the right to any
Excess Interest in respect of the ARD Loans and the Excess Interest Sub-Account,
as separate grantor trusts within the meaning of subpart E, part I of Subchapter
J of the Code. The Class A-2 Certificates will be treated as undivided
beneficial interests in the Class A-2 Grantor Trust.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement, the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the Mortgage
Note included in the Trust, which is senior in right of payment to the related B
Note to the extent set forth in the related Intercreditor Agreement. There are
no A Notes in the Trust.
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"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial sub-account(s)
of the Certificate Account (but which are not included in the Trust) created and
maintained by the Master Servicer pursuant to Section 5.1(c) on behalf of the
holder of the related B Note. Any such sub-account(s) shall be maintained as a
sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means any mortgage loan designated as an A/B
Mortgage Loan on the Mortgage Loan Schedule. References herein to an A/B
Mortgage Loan shall be construed to refer to the aggregate indebtedness under
the related A Note and the related B Note. There are no A/B Mortgage Loans in
the Trust.
"ACCOUNTANT" means a person engaged in the practice of accounting who
is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each Distribution
Date and any Class of Interests or Principal Balance Certificates, other than
the Class X Certificates, the Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates, interest accrued during the
Interest Accrual Period relating to such Distribution Date on the Aggregate
Certificate Balance of such Class or Interest as of the close of business on the
immediately preceding Distribution Date at the respective rates per annum set
forth in the definition of the applicable Pass-Through Rate for each such Class.
Accrued Certificate Interest on the Class X-1 Certificates for each Distribution
Date will equal the Class X-1 Interest Amount. Accrued Certificate Interest on
the Class X-2 Certificates for each Distribution Date will equal the Class X-2
Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code (and in
particular the REMIC Provisions and Section 856(e) of the Code), the Trust or a
REMIC Pool is deemed to have acquired a Mortgaged Property (or an interest
therein, in the case of the Mortgaged Properties securing the 2001-TOP3 Mortgage
Loan and the Pari Passu Loan or any A/B Mortgage Loan).
"ADDITIONAL TRUST EXPENSE" means any of the following items: (i)
Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent not
collected from the related Mortgagor), (ii) Advance Interest that cannot be paid
in accordance with Section 4.6(c); (iii) amounts paid to indemnify the Master
Servicer, the Special Servicer, the Primary Servicers, the 2001-TOP3 Master
Servicer, the 2001-TOP3 Special Servicer, the Trustee, the Paying Agent, the
Fiscal Agent (or any other Person) pursuant to the terms of this Agreement; (iv)
to the extent not otherwise paid, any federal, state, or local taxes imposed on
the Trust or its assets and paid from amounts on deposit in the Certificate
Account or Distribution Account, (v) the amount of any Advance that is not
recovered from the proceeds of a Mortgage Loan upon a Final Recovery
Determination and (vi) to the extent not included in the calculation of a
Realized Loss and not covered by indemnification by one of the parties hereto or
otherwise, any other unanticipated cost, liability, or expense (or portion
thereof) of the Trust (including costs of collecting such amounts or other
Additional Trust Expenses) which the Trust has not recovered, and in the
judgment of the Master Servicer (or Special Servicer, in the case of a Specially
Serviced Mortgage Loan) will not, recover from the related Mortgagor or
Mortgaged Property or otherwise, including a Modification Loss described in
clause (ii) of the definition thereof; provided, however, that, in the case of
an A/B Mortgage Loan, "Additional Trust Expense" shall
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not include any of the foregoing amounts that have been recovered from the
related Mortgagor or Mortgaged Property as a result of the subordination of the
related B Note. Notwithstanding anything to the contrary, "Additional Trust
Expenses" shall not include allocable overhead of the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar or
the Fiscal Agent, such as costs for office space, office equipment, supplies and
related expenses, employee salaries and related expenses, and similar internal
costs and expenses. "Additional Trust Expenses" shall not include expenses
incurred in connection with Section 6.12, which are payable in accordance with
the last paragraph thereof.
"ADMINISTRATIVE COST RATE" means the sum of the Master Servicing Fee
Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee Rate and the
Trustee Fee Rate and in the case of the Pari Passu Loan, the Pari Passu Loan
Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
"ADVANCE INTEREST" means interest payable to the Master Servicer, the
Trustee or the Fiscal Agent on outstanding Advances pursuant to Section 4.5 of
this Agreement and any interest payable to the 2001-TOP3 Master Servicer with
respect to Pari Passu Loan Nonrecoverable P&I Advances and Pari Passu
Nonrecoverable Servicing Advances pursuant to Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate as
published in the "Money Rates" section of The Wall Street Journal from time to
time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REPORT DATE" means the second Business Day prior to each
Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Code Section 860F(a)(2) and the tax on prohibited
contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the Certificate
Balances of the Principal Balance Certificates, the REMIC I Regular Interests or
the REMIC II Regular Interests, as the case may be, at any date of
determination. With respect to a Class of Principal Balance Certificates, REMIC
I Regular Interests or REMIC II Regular Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination.
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"AGGREGATE PRINCIPAL BALANCE" means, at the time of any determination
and as the context may require, the aggregate of the Scheduled Principal
Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD Loans, the
anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI appraiser
having at least five years experience in appraising property of the same type
as, and in the same geographic area as, the Mortgaged Property being appraised,
which appraisal complies with the Uniform Standards of Professional Appraisal
Practices and states the "market value" of the subject property as defined in 12
C.F.R. ss. 225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan, not later
than the earliest of (i) the date 120 days after the occurrence of any
delinquency in payment with respect to such Mortgage Loan if such delinquency
remains uncured, (ii) the date 30 days after receipt of notice that the related
Mortgagor has filed a bankruptcy petition or the related Mortgagor has become
the subject of involuntary bankruptcy proceedings or the related Mortgagor has
consented to the filing of a bankruptcy proceeding against it or a receiver is
appointed in respect of the related Mortgaged Property, provided such petition
or appointment is still in effect, (iii) the date that is 30 days following the
date the related Mortgaged Property becomes an REO Property and (iv) the
effective date of any modification to a Money Term of a Mortgage Loan, other
than an extension of the date that a Balloon Payment is due for a period of less
than six months from the original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required Appraisal
Loan with respect to which an Appraisal or internal valuation is performed
pursuant to Section 6.9, an amount equal to the excess of (A) the sum, as of the
first Determination Date that is at least 15 days after the date on which the
Appraisal or internal valuation is obtained or performed, of (i) the Scheduled
Principal Balance of such Mortgage Loan (or, in the case of an REO Property, the
related REO Mortgage Loan) less the undrawn principal amount of any letter of
credit or debt service reserve, if applicable, that is then securing such
Mortgage Loan, (ii) to the extent not previously advanced by the Master
Servicer, the Trustee or the Fiscal Agent, all accrued and unpaid interest on
such Mortgage Loan at a per annum rate equal to the Mortgage Rate, (iii) all
unreimbursed Advances and interest on Advances at the Advance Rate with respect
to such Mortgage Loan, and (iv) to the extent funds on deposit in any applicable
Escrow Accounts are not sufficient therefor, and to the extent not previously
advanced by the Master Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens) of such Mortgaged Property or REO
Property as determined by such Appraisal or internal valuation, as the case may
be, plus the full amount of any escrows held by or on behalf of the Trustee as
security for the Mortgage Loan (less the estimated amount of the
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obligations anticipated to be payable in the next twelve months to which such
escrows relate). Each Appraisal or internal valuation for a Required Appraisal
Loan shall be updated annually. The Appraisal Reduction for each Required
Appraisal Loan will be recalculated based on subsequent Appraisals, internal
valuations or updates. Any Appraisal Reduction for any Mortgage Loan shall be
reduced to reflect any Realized Principal Losses on the Required Appraisal Loan.
Each Appraisal Reduction will be reduced to zero as of the date the related
Mortgage Loan is brought current under the then current terms of the Mortgage
Loan for at least three consecutive months, and no Appraisal Reduction will
exist as to any Mortgage Loan after it has been paid in full, liquidated,
repurchased or otherwise disposed of. Any Appraisal Reduction in respect of the
Pari Passu Loan shall be calculated based upon the applicable allocation of the
items set forth in clauses (A) and (B) above between the Pari Passu Loan and the
2001-TOP3 Mortgage Loan.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged Property
(other than the Mortgaged Property relating to the Pari Passu Loan), the
appraised value thereof determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan made by an Independent appraiser selected by the
Master Servicer or the Special Servicer, as applicable or, in the case of an
internal valuation performed by the Special Servicer pursuant to Section 6.9,
the value of the Mortgaged Property determined by such internal valuation and
(ii) with respect to the Mortgaged Property relating to the Pari Passu Loan, the
portion of the appraised value allocable thereto.
"ARD LOANS" means the Mortgage Loans designated on the Mortgage Loan
Schedule as Mortgage Loan Nos. 0 (Xxxxxxxxxxx Xxxxxxxxx) and 61 (Parkway
Business Center).
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage Loan, any
assignment of leases, rents and profits or equivalent instrument, whether
contained in the related Mortgage or executed separately, assigning to the
holder or holders of such Mortgage all of the related Mortgagor's interest in
the leases, rents and profits derived from the ownership, operation, leasing or
disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage, notice of
transfer or equivalent instrument, in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the transfer of the Mortgage to the Trustee, which assignment, notice of
transfer or equivalent instrument may be in the form of one or more blanket
assignments covering the Mortgage Loans secured by Mortgaged Properties located
in the same jurisdiction, if permitted by law.
"ASSIGNMENT OF SWAP CONTRACT" means the Assignment of Interest Rate
Swap Agreement, dated as of November 8, 2001, from the Depositor to the Trust
Fund, and acknowledged by the Swap Counterparty, pursuant to which the Depositor
has assigned all of its rights and obligations under the Swap Contract to the
Trust Fund.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any Balloon
Mortgage Loan for its Maturity Date (provided that such Mortgage Loan has not
been paid in full, and no Final Recovery Determination or other sale or
liquidation has occurred in respect
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thereof, on or before the end of the Collection Period in which such Maturity
Date occurs) and for any subsequent Due Date therefor as of which such Mortgage
Loan remains outstanding and part of the Trust, if no Scheduled Payment (other
than the related delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and interest deemed to be due in respect
thereof on such Due Date equal to the Scheduled Payment that would have been due
in respect of such Mortgage Loan on such Due Date, if it had been required to
continue to accrue interest in accordance with its terms, and to pay principal
in accordance with the amortization schedule in effect immediately prior to, and
without regard to the occurrence of, its most recent Maturity Date (as such may
have been extended in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to the terms hereof), and (ii) with respect to any REO
Mortgage Loan for any Due Date therefor as of which the related REO Property
remains part of the Trust, the scheduled monthly payment of principal and
interest deemed to be due in respect thereof on such Due Date equal to the
Scheduled Payment (or, in the case of a Balloon Mortgage Loan described in the
preceding clause of this definition, the Assumed Scheduled Payment) that was due
in respect of the related Mortgage Loan on the last Due Date prior to its
becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for
any A Note shall be calculated solely by reference to the terms of such A Note
(as modified in connection with any bankruptcy or similar proceeding involving
the related Mortgagor or pursuant to a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or the Special
Servicer pursuant to the terms hereof) and without regard to the remittance
provisions of the related Intercreditor Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving in such
capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an Officer's
Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set forth in
Section 4.6(a) hereof.
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any Distribution
Date, an amount equal to the aggregate of (a) all amounts on deposit in the
Distribution Account as of the commencement of business on such Distribution
Date that represent payments and other collections on or in respect of the
Mortgage Loans and any REO Properties that were received by the Master Servicer
or the Special Servicer through the end of the related Collection Period
exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders or the Swap Counterparty (including amounts
payable to the Master Servicer in respect of unpaid Master Servicing Fees, the
Primary Servicers in respect of unpaid Primary Servicing Fees, the Special
Servicer in respect of unpaid Special Servicer Compensation, the Trustee in
respect of unpaid Trustee Fees, the Paying Agent in respect of unpaid Paying
Agent Fees or to the parties entitled thereto in respect of the unpaid Excess
Servicing Fees), (iii) amounts that constitute Prepayment Premiums, (iv) if such
Distribution Date occurs during January, other than in a leap year, or February
of any year, the Interest Reserve Amounts with respect to Interest Reserve
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Loans deposited in the Interest Reserve Account, (v) in the case of each REO
Property related to an A/B Mortgage Loan, all amounts received with respect to
such A/B Mortgage Loan that are required to be paid to the holder of the related
B Note pursuant to the terms of the related B Note and the related Intercreditor
Agreement (which amounts will be deposited into the related A/B Loan Custodial
Account pursuant to Section 5.1(c) and withdrawn from such account pursuant to
Section 5.2(a)) and (vi) Scheduled Payments collected but due on a Due Date
subsequent to the related Collection Period and (b) if and to the extent not
already among the amounts described in clause (a), (i) the aggregate amount of
any P&I Advances made by the Master Servicer, the Trustee or the Fiscal Agent
for such Distribution Date pursuant to Section 4.1 and/or Section 4.3, (ii) the
aggregate amount of any Compensating Interest payments made by the Master
Servicer for such Distribution Date pursuant to the terms hereof, and (iii) if
such Distribution Date occurs in March of any year, commencing March 2002, the
aggregate of the Interest Reserve Amounts then held on deposit in the Interest
Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the related
Mortgage Note not included in the Trust, which is subordinated in right of
payment to the related A Note to the extent set forth in the related
Intercreditor Agreement. There are no B Notes related to the Trust.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan that provides for
Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage Loan, the
Scheduled Payment payable on the Maturity Date of such Mortgage Loan.
"BANKING DAY" means any day on which commercial banks are open for
business (including dealings in foreign exchange and foreign currency) in
London, England and New York City, New York.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under the
United States Bankruptcy Code or any other similar state law or other proceeding
with respect to the Mortgagor of, or Mortgaged Property under, a Mortgage Loan,
including, without limitation, any Deficient Valuation Amount or losses, if any,
resulting from any Debt Service Reduction Amount for the month in which the
related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates (except for the Class A-2
Certificates) and the Class A-2 Regular Interest, a fraction (A) whose numerator
is the greater of (x) zero and (y) the difference between (i) the Pass-Through
Rate on that Class of Certificates or the Class A-2 Regular Interest, as
applicable, and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to the Principal Prepayment (or the current Discount Rate
if not used in such calculation) and (B) whose denominator is the difference
between (i) the Mortgage Rate on the related Mortgage Loan and (ii) the Discount
Rate used in calculating the Prepayment Premium with respect to that Principal
Prepayment (or the current Discount Rate if not used in such calculation),
provided,
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however, that under no circumstances will the Base Interest Fraction
be greater than one. If the Discount Rate referred to above is greater than the
Mortgage Rate on the related Mortgage Loan, then the Base Interest Fraction will
equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel satisfactory to the
Paying Agent and the Master Servicer to the effect that any proposed transfer
will not (i) cause the assets of any REMIC to be regarded as plan assets for
purposes of the Plan Asset Regulations or (ii) give rise to any fiduciary duty
on the part of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent, the Certificate Registrar or the Fiscal Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a beneficial
interest in a Class of Certificates, ownership and transfer of which shall be
made through book entries as described in Section 3.7; provided, that after the
occurrence of a condition whereupon book-entry registration and transfer are no
longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"BSF" has the meaning assigned in the Preliminary Statement hereto.
"BSF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a Sunday,
(ii) a legal holiday in New York, New York, Boston, Massachusetts (but only with
respect to matters related to the performance of obligations delegated to JHREF
as Primary Servicer under the related Primary Servicing Agreement), Chicago,
Illinois, Des Moines, Iowa (but only with respect to matters related to the
performance of obligations of Principal Capital Management, LLC as Primary
Servicer under the related Primary Servicing Agreement), San Francisco,
California or the principal cities in which the Special Servicer, the Trustee,
the Paying Agent or the Master Servicer conducts servicing or trust operations,
or (iii) a day on which banking institutions or savings associations in
Minneapolis, Minnesota, Columbia, Maryland, New York, New York, Chicago,
Illinois or San Francisco, California are authorized or obligated by law or
executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan other than
a Mortgage Loan with respect to which the related Mortgaged Property became REO
Property, the sale of such Defaulted Mortgage Loan. The Master Servicer shall
maintain records in accordance with the Servicing Standard (and, in the case of
Specially Serviced Mortgage Loans, based on the written reports with respect to
such Cash Liquidation delivered by the Special Servicer to the Master Servicer),
of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts established
and maintained by the Master Servicer (or any Sub-Servicer or Primary Servicer
on behalf of the Master Servicer) pursuant to Section 5.1(a), each of which
shall be an Eligible Account.
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"CERTIFICATE BALANCE" means, with respect to any Certificate or
Interest (other than the Class X Certificates and the Residual Certificates) as
of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto in the Preliminary Statement
hereto (in the case of an Interest), minus (i) the amount of all principal
distributions previously made with respect to such Certificate pursuant to
Section 6.5(a) or deemed to have been made with respect to such Interest
pursuant to Section 6.2(a) or Section 6.3(a), as the case may be, and (ii) all
Realized Losses allocated or deemed to have been allocated to such Interest or
Certificate in reduction of Certificate Balance pursuant to Section 6.6. The
Certificate Balance of the Class A-2A Component and the Class A-2B Component
shall equal the Certificate Balance of the REMIC II Regular Interest A-2A and
the REMIC II Regular Interest A-2B, respectively.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Book-Entry Certificate, as may be
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"CERTIFICATE REGISTER" has the meaning provided in Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed pursuant to
Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning provided in the definition of
"Holder."
"CERTIFICATES" means, collectively, the Class A Certificates, Class X-1
Certificates, Class X-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates,
Class G Certificates, Class H Certificates, Class J Certificates, Class K
Certificates, Class L Certificates, Class M Certificates, Class N Certificates,
Class R-I Certificates, Class R-II Certificates, or Class R-III Certificates.
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests, REMIC III Certificates, the Class A-2 Regular Interest and the Class
A-2 Certificates, any Class of such Certificates or Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2 CERTIFICATES," "CLASS B
CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D CERTIFICATES," "CLASS E
CERTIFICATES," "CLASS F CERTIFICATES," "CLASS G CERTIFICATES," "CLASS H
CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K CERTIFICATES," "CLASS L
CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N CERTIFICATES," "CLASS R-I
CERTIFICATES," "CLASS R-II CERTIFICATES," or "CLASS R-III CERTIFICATES," mean
the Certificates designated as "Class A-1," "Class A-2," "Class A-3," "Class
X-1," "Class X-2," "Class B," "Class C," "Class D," "Class E," "Class F," "Class
G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N," "Class
R-I," "Class R-II" and "Class R-III" respectively, on the face thereof, in
substantially the form attached hereto as Exhibits.
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"CLASS A CERTIFICATES" means the Class A-1 Certificates, the Class A-2
Certificates and the Class A-3 Certificates.
"CLASS A-2A COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Regular Interest, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial interest in
REMIC III evidenced by the Class A-2 Regular Interest, which represents a
Certificate Balance equal to the Certificate Balance of the REMIC II Regular
Interest A-2B.
"CLASS A-2 AVAILABLE FUNDS" means, in respect of each Distribution
Date, (i) the sum of all previously undistributed payments or other receipts on
account of principal and interest and other sums on or in respect of the Class
A-2 Regular Interest received by the Paying Agent (or the Master Servicer on the
Paying Agent's behalf) after the Cut-off Date and on or prior to such
Distribution Date and (ii) the sum of all previously undistributed amounts
received from the Swap Counterparty in respect of the Class A-2 Regular Interest
pursuant to the Swap Contract, including, but not limited to, any termination
payment, but excluding the following: (a) all amounts of Prepayment Premiums
allocated to the Class A-2 Regular Interest for so long as the Swap Contract is
in effect; and (b) all amounts required to be paid to the Swap Counterparty in
respect of the Class A-2 Regular Interest pursuant to the Swap Contract.
"CLASS A-2 INTEREST DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, the sum of (i) for so long as the Swap Contract is in effect,
the aggregate amount of interest received by the Paying Agent from the Swap
Counterparty in respect of the Class A-2 Regular Interest pursuant to the terms
of the Swap Contract during the related Interest Accrual Period and (ii) amounts
in respect of interest (including reimbursement of any Interest Shortfalls)
received on the Class A-2 Regular Interest not required to be paid to the Swap
Counterparty (which will arise due to the netting provisions of the Swap
Contract or upon the termination or expiration of the Swap Contract). If the
Swap Counterparty defaults on its obligation to pay such interest to the Paying
Agent, or if a Swap Default occurs, the Class A-2 Interest Distribution Amount
will equal the Distributable Certificate Interest Amount in respect of the Class
A-2 Regular Interest, until such time as the Swap Default is cured, or such
obligation is paid, as the case may be, or until a replacement Swap Contract is
obtained.
"CLASS A-2 PRINCIPAL DISTRIBUTION AMOUNT" means, in respect of any
Distribution Date, an amount equal to the aggregate amount of the principal
payments made on the Class A-2 Regular Interest on such Distribution Date.
"CLASS A-2 GRANTOR TRUST" means the segregated pool of assets
consisting of (i) the Class A-2 Regular Interest and the Swap Contract and all
payments under the Class A-2 Regular Interest and the Swap Contract, (ii) all
funds and assets from time to time on deposit in the Floating Rate Account and
(iii) proceeds of all of the foregoing.
"CLASS A-2 REGULAR INTEREST" means the uncertificated interest
designated as a "regular interest" in REMIC III, which shall consist of an
Interest having a Certificate Balance
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equal to the Certificate Balance of the Class A-2 Certificates, and which has a
Pass-Through Rate equal to the per annum rate of 5.50% in respect of each
Distribution Date.
"CLASS N GRANTOR TRUST" means that portion of the Trust Fund consisting
of the Class N Grantor Trust Interest.
"CLASS N GRANTOR TRUST INTEREST" means that portion of the rights
represented by the Class N Certificates that evidences beneficial ownership of
the Excess Interest and the Excess Interest Sub-account, as described in Section
12.1(b) hereof.
"CLASS N REMIC INTEREST" means that portion of the rights represented
by the Class N Certificates that evidences a regular interest in REMIC III,
which rights consist of the rights to the distributions described in Section 6.5
hereof and all other rights of the Holders of the Class N Certificates other
than those comprising the Class N Grantor Trust Interest.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and the Class
X-2 Certificates.
"CLASS X-1 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-1 Strip Rates for the Class A-1 Certificates, Class A-2A Component, Class A-2B
Component, Class A-3 Certificates, Class B Certificates, Class C Certificates,
Class D Certificates, Class E Certificates, Class F Certificates, Class G
Certificates, Class H Certificates, Class J Certificates, Class K Certificates,
Class L Certificates, Class M Certificates and Class N Certificates, weighted on
the basis of the respective Certificate Balances of such Classes of Certificates
or such Components and (ii) the Class X-1 Notional Amount for such Distribution
Date.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any Distribution
Date, the aggregate of the Certificate Balances of the Principal Balance
Certificates (other than the Class A-2 Certificates) and the Class A-2 Regular
Interest as of the close of business on the preceding Distribution Date.
"CLASS X-1 STRIP RATE" means, for any Distribution Date, with respect
to any Class of Certificates (other than the Class A-2, Class X and the Residual
Certificates), the Class A-2A Component and the Class A-2B Component, the
excess, if any, of (i) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (ii) (x) in the case of the Class A-1 Certificates, Class
A-2A Component, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J Certificates,
Class K Certificates, Class L Certificates, Class M Certificates and Class N
Certificates, the Pass-Through Rate for such Class of Certificates or such
Component and (y) in the case of the Class A-2B Component, Class A-3
Certificates, Class B Certificates and Class C Certificates, (i) for any
Distribution Date occurring on or before the Distribution Date in November 2008,
the rate per annum corresponding to such Distribution Date as set forth in
Schedule IX attached hereto and (ii) for any Distribution Date occurring after
the Distribution Date in November 2008, the Pass-Through Rate for such Class of
Certificates or such Component, but in no event shall the Class X-1 Strip Rate
be less than zero.
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"CLASS X-2 INTEREST AMOUNT" means, with respect to any Distribution
Date and the related Interest Accrual Period, interest equal to the product of
(i) one-twelfth of a per annum rate equal to the weighted average of the Class
X-2 Strip Rates for the Class A-2B Component, Class A-3 Certificates, Class B
Certificates and Class C Certificates, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Component and (ii)
the Class X-2 Notional Amount for such Distribution Date.
"CLASS X-2 NOTIONAL AMOUNT" means, (i) with respect to any Distribution
Date occurring on or before the Distribution Date in November 2008, the
aggregate of the Certificate Balances of the Class A-2B Component , the Class
A-3 Certificates, the Class B Certificates and Class C Certificates as of the
close of business on the preceding Distribution Date and (ii) with respect to
any Distribution Date occurring after the Distribution Date in November 2008,
zero.
"CLASS X-2 STRIP RATE" means, for any Distribution Date, with respect
to the Class A-2B Component, Class A-3 Certificates, Class B Certificates and
Class C Certificates, the excess, if any, of (x) the lesser of (i) the rate per
annum corresponding to such Distribution Date as set forth in Schedule IX
attached hereto and (ii) the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date over (y) the Pass-Through Rate for such Component or such
Class of Certificates for such Distribution Date, but in no event will any Class
X-2 Strip Rate be less than zero.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the 1934 Act, which initially shall be the
Depository.
"CLEARSTREAM" means Clearstream Banking, societe anonyme.
"CLOSING DATE" means November 8, 2001.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended, any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution Date, the
period beginning on the day after the Determination Date in the month preceding
the month of such Distribution Date (or in the case of the first Distribution
Date, the Cut-Off Date) and ending on the Determination Date in the month in
which the Distribution Date occurs.
"COMPENSATING INTEREST" means with respect to any Distribution Date, an
amount equal to the excess of (A) Prepayment Interest Shortfalls incurred in
respect of the Mortgage Loans other than the Specially Serviced Mortgage Loans
resulting from Principal Prepayments on the Mortgage Loans during the related
Collection Period over (B) Prepayment Interest Excesses resulting from Principal
Prepayments on the Mortgage Loans during the same
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Collection Period, but in any event with respect to Compensating Interest to be
paid by the Master Servicer hereunder, not more than the portion of the
aggregate Master Servicing Fee accrued at a rate per annum equal to 2 basis
points for the related Collection Period calculated in respect of all the
Mortgage Loans (including REO Mortgage Loans). Notwithstanding the foregoing, as
to any Distribution Date, if a Mortgage Loan has a Due Date (including its grace
period) that is after the Determination Date relating to such Distribution Date,
Compensating Interest shall include the entire Prepayment Interest Shortfall,
unless the Mortgage Loan documents require the Mortgagor to make any Principal
Prepayment or Balloon Payment only on the respective Due Date (or if not on that
Due Date, the Mortgage Loan documents require the Mortgagor to pay interest
through the Due Date within the related Collection Period).
"COMPONENT" means either of the Class A-2A Component and the Class A-2B
Component.
"CONDEMNATION PROCEEDS" means any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Mortgagor in
accordance with the terms of the Mortgage Loan and (if applicable) its related B
Note, and with respect to the Mortgaged Property securing the 2001-TOP3 Mortgage
Loan and the Pari Passu Loan, any portion of such amounts payable to the holder
of the Pari Passu Loan.
"CONTROLLING CLASS" means the most subordinate Class of REMIC III
Certificates or Class A-2 Certificates outstanding at any time of determination;
provided, that, if the aggregate Certificate Balance of such Class is less than
25% of the initial Certificate Balance of such Class as of the Closing Date, the
Controlling Class shall be the next most subordinate Class of REMIC III
Certificates or Class A-2 Certificates outstanding. As of the Closing Date, the
Controlling Class will be the Class N Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any other
Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the presentment and
surrender of Certificates for the final distribution thereon or the presentment
and surrender of Certificates for any other purpose, the principal corporate
trust office of the Certificate Registrar. The principal corporate trust office
of the Trustee is presently located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000, Attention: Asset-Backed Securities Trust Services Group--Bear
Xxxxxxx Commercial Mortgage Securities Inc. Series 2001-TOP4 and the office of
the Certificate Registrar is presently located for certificate transfer purposes
at Xxxxx Fargo Center, Sixth and Marquette Avenue, MAC #N9303-121, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)-- Bear Xxxxxxx
Commercial Mortgage Securities Inc. 2001-TOP4, and for all other purposes at
00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Services (CMBS)-- Bear Xxxxxxx Commercial Mortgage Securities Inc. Series
2001-TOP4, or at such other address as the Trustee or Certificate Registrar may
designate from time to time by notice to the Certificateholders, the Depositor,
the Master Servicer, the Paying Agent and the Special Servicer.
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"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to each
Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with respect to
each Class of Principal Balance Certificates other than the Class A-2
Certificates, the REMIC II Regular Interest having the same letter designation
and (ii) with respect to the Class A-2 Regular Interest, the REMIC II Regular
Interest A-2A and the REMIC II Regular Interest A-2B.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section 2.3(a)
hereof.
"CUSTODIAN" means the Trustee or any Person who is appointed by the
Trustee at any time as custodian pursuant to Section 7.9 and who is unaffiliated
with the Depositor and each Seller and satisfies the eligibility requirements of
the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial institution or
other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on November 1, 2001. The
Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than the
first day of each month shall be the end of business on November 1, 2001, and
Scheduled Payments due in November 2001 with respect to Mortgage Loans not
having Due Dates on the first of each month have been deemed received on
November 1, 2001, not the actual day on which such Scheduled Payments were due.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any Mortgage Loan,
as of any date of determination and for any period, the amount calculated for
such date of determination in accordance with the procedures set forth in
Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due Date and
the related Determination Date, the amount of the reduction of the Scheduled
Payment which a Mortgagor is obligated to pay on such Due Date with respect to a
Mortgage Loan or B Note as a result of any proceeding under bankruptcy law or
any similar proceeding (other than a Deficient Valuation Amount); provided,
however, that in the case of an amount that is deferred, but not forgiven, such
reduction shall include only the net present value (calculated at the related
Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan that is in default
under the terms of the applicable Mortgage Loan documentation and for which any
applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance Loan, the
United States Treasury obligations required to be pledged in lieu of prepayment
pursuant to the terms thereof.
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"DEFEASANCE LOAN" means any Mortgage Loan or B Note which requires or
permits the related Mortgagor (or permits the holder of such Mortgage Loan or B
Note to require the related Mortgagor) to pledge Defeasance Collateral to such
holder in lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in Section 2.3(a)
hereof.
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan (other
than an A Note) and any A/B Mortgage Loan, a valuation by a court of competent
jurisdiction of the Mortgaged Property (or with respect to the Mortgaged
Property securing the Pari Passu Loan and the 2001-TOP3 Mortgage Loan, the pro
rata portion of the valuation allocable to the Pari Passu Loan) relating to such
Mortgage Loan or A/B Mortgage Loan in an amount less than the then outstanding
indebtedness under such Mortgage Loan or A/B Mortgage Loan, which valuation
results from a proceeding initiated under the United States Bankruptcy Code, as
amended from time to time, and that reduces the amount the Mortgagor is required
to pay under such Mortgage Loan or A/B Mortgage Loan.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each Mortgage
Loan (other than an A Note) and any A/B Mortgage Loan, the amount by which the
total amount due with respect to such Mortgage Loan (excluding interest not yet
accrued), including the Principal Balance of such Mortgage Loan plus any accrued
and unpaid interest thereon and any other amounts recoverable from the Mortgagor
with respect thereto pursuant to the terms thereof, is reduced in connection
with a Deficient Valuation and (ii) with respect to any A Note, the portion of
any Deficient Valuation Amount for the related A/B Mortgage Loan that is borne
by the holder of the A Note under the related Intercreditor Agreement.
"DEFINITIVE CERTIFICATES" means Certificates of any Class issued in
definitive, fully registered, certificated form without interest coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is repurchased from
the Trust pursuant to the terms hereof or as to which one or more Qualifying
Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Bear Xxxxxxx Commercial Mortgage Securities Inc., a
Delaware corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations dated the
Closing Date and by and between the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution Date, the
earlier of (i) the 10th day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the immediately preceding Business Day,
and (ii) the 5th Business Day prior to the related Distribution Date, commencing
December 10, 2001.
"DIRECTLY OPERATE" means, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management of
such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property
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pursuant to and in accordance with Section 9.15) or the performance of any
construction work thereon, in each case other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs, tenant
improvements or capital expenditures with respect to such REO Property
(including, without limitation, construction activity to effect repairs or in
connection with leasing activity) or undertakes any ministerial action
incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly, is
equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicer will select a comparable publication to determine
the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United States, any
State or any political subdivision thereof, or any agency or instrumentality of
any of the foregoing (other than an instrumentality which is a corporation if
all of its activities are subject to tax and, except for FHLMC, a majority of
its board of directors is not selected by any such governmental unit), (ii) a
foreign government, international organization or any agency or instrumentality
of either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from tax
imposed by Chapter 1 of the Code (unless such organization is subject to the tax
imposed by Section 511 of the Code on unrelated business taxable income), (iv)
rural electric and telephone cooperatives described in Section 1381 of the Code,
and (v) any other Person so designated by the Master Servicer based upon an
Opinion of Counsel that the holding of an ownership interest in a Residual
Certificate by such Person may cause any of the REMICs, or any Person having an
Ownership Interest in any Class of Certificates, other than such Person, to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the transfer of an ownership interest in a Residual
Certificate to such Person. The terms "United States," "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to any
Distribution Date and any Class of Certificates (other than the Class A-2
Certificates and the Residual Certificates) or Interests (including the Class
A-2 Regular Interest), the sum of (A) Accrued Certificate Interest in respect of
such Class or Interest, reduced (to not less than zero) by (i) any Net Aggregate
Prepayment Interest Shortfalls for such Class of Certificates or Interests,
allocated on such Distribution Date to such Class or Interest pursuant to
Section 6.7, and (ii) Realized Losses allocated on such Distribution Date to
reduce the Distributable Certificate Interest payable to such Class or Interest
pursuant to Section 6.6, plus (B) the Unpaid Interest.
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"DISTRIBUTION ACCOUNT" means the Distribution Account maintained by the
Paying Agent on behalf of the Trustee, in accordance with the provisions of
Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 15th day of each month or, if such day is
not a Business Day, the next succeeding Business Day, commencing December 17,
2001.
"DUE DATE" means, with respect to a Mortgage Loan or B Note, the date
on which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any of the
following: (i) maintained with a depository institution or trust company whose
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are rated at least "P-1" by Moody's and "A-1" by S&P, if the deposits
are to be held in the account for 30 days or less, or (B) long-term unsecured
debt obligations are rated at least "Aa2" by Moody's and "AA-" (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") by S&P, if the deposits are to be held in the account more
than 30 days or (ii) a segregated trust account or accounts maintained in the
trust department of the Trustee, the Paying Agent or other financial institution
having a combined capital and surplus of at least $50,000,000 and subject to
regulations regarding fiduciary funds on deposit similar to Title 12 of the Code
of Federal Regulations Section 9.10(b), or (iii) an account or accounts of a
depository institution acceptable to each Rating Agency, as evidenced by Rating
Agency Confirmation with respect to the use of any such account as the
Certificate Account or the Distribution Account. Notwithstanding anything in the
foregoing to the contrary, an account shall not fail to be an Eligible Account
solely because it is maintained with Xxxxx Fargo Bank, National Association or
Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned subsidiary of Xxxxx Fargo &
Co., provided that such subsidiary's or its parent's (A) commercial paper,
short-term unsecured debt obligations or other short-term deposits are at least
"P-1" in the case of Moody's, and "A-1" in the case of S&P, if the deposits are
to be held in the account for 30 days or less, or (B) long-term unsecured debt
obligations are rated at least "Aa3" in the case of Moody's and "AA-" (or "A"
(without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") in the case of S&P, if the deposits are to
be held in the account for more than 30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following financial
assets or other property.
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America, FNMA,
FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
(ii) demand or time deposits in, unsecured certificates of deposit
of, money market deposit accounts of, or bankers' acceptances issued by, any
depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying
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Agent or any Affiliate of the Master Servicer, the Special Servicer, the Paying
Agent or the Trustee, acting in its commercial capacity) incorporated or
organized under the laws of the United States of America or any State thereof
and subject to supervision and examination by federal or state banking
authorities, so long as the commercial paper or other short-term debt
obligations of such depository institution or trust company are rated "A-1+" by
S&P and "Prime-1" by Moody's or the long-term unsecured debt obligations of such
depository institution or trust company have been assigned a rating by each
Rating Agency at least equal "AA-" by S&P and "Aa2" by Moody's or its equivalent
or, in each case, if not rated by a Rating Agency, then such Rating Agency has
issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) rated "A-1+" by
S&P and "Prime-1" by Moody's (or for which Rating Agency Confirmation is
obtained with respect to such ratings);
(vi) units of investment funds (including money market funds)
rated in the highest long-term category by S&P and Moody's, or if not rated by
S&P or Moody's, then S&P or Moody's, as applicable, has issued a Rating Agency
Confirmation;
(vii) guaranteed reinvestment agreements maturing within 365 days
or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "AA-" by S&P and "Aa2" by
Moody's, or for which Rating Agency Confirmation is obtained with respect to
such ratings;
(viii) any money market funds that maintain a constant asset value
and that are rated "Aaa" (or its equivalent rating) by Moody's and "AAAm" or
"AAAm-G" (or its equivalent) by S&P, and any other demand, money-market or time
deposit, or any other obligation, security or investment, with respect to which
Rating Agency Confirmation has been obtained; and
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(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Code Section 860G(a)(5);
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Code Section 860G(a)(5); and provided, further,
that any such instrument shall have a maturity date no later than the date such
instrument is required to be used to satisfy the obligations under this
Agreement, and, in any event, shall not have a maturity in excess of one year;
any such instrument must have a predetermined fixed dollar of principal due at
maturity that cannot vary or change; if rated, the obligation must not have an
"r" highlighter affixed to its rating; interest on any variable rate instrument
shall be tied to a single interest rate index plus a single fixed spread (if
any) and move proportionally with that index; and provided, further, that no
amount beneficially owned by any REMIC Pool (including any amounts collected by
the Master Servicer but not yet deposited in the Certificate Account) may be
invested in investments treated as equity interests for Federal income tax
purposes. No Eligible Investments shall be purchased at a price in excess of
par. For the purpose of this definition, units of investment funds (including
money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL LAWS" means any and all federal, state and local
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to any
Mortgage Loan or the related Mortgaged Property or REO Property, any insurance
policy covering pollution conditions and/or other environmental conditions that
is maintained from time to time in respect of such Mortgage Loan, Mortgaged
Property or REO Property, as the case may be, for the benefit of, among others,
the Trustee on behalf of the Certificateholders.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW ACCOUNT" means an account established by or on behalf of the
Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a Mortgage
Loan (including an A/B Mortgage Loan) for taxes, assessments, water rates,
Standard Hazard Insurance Policy premiums, ground lease payments, reserves for
capital improvements, deferred maintenance, repairs, tenant improvements,
leasing commissions, rental achievements, environmental matters and other
reserves or comparable items.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.28(b).
"EXCESS INTEREST" means, with respect to an ARD Loan if an ARD Loan is
not prepaid in full on or before its Anticipated Repayment Date, the excess, if
any of (i) interest accrued at the rate of interest applicable to such Mortgage
Loan after such Anticipated Repayment Date (plus any interest on such interest
as may be provided for under the Mortgage Loan documents) over (ii) interest
accrued at the rate of interest applicable to such Mortgage Loan before such
Anticipated Repayment Date. Excess Interest on the ARD Loan is an asset of the
Trust, but shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative sub-account of
the Distribution Account. The Excess Interest Sub-account shall not be an asset
of any REMIC Pool formed hereunder.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any Mortgage Loan,
the excess of (i) Liquidation Proceeds of a Mortgage Loan or related REO
Property, over (ii) the amount that would have been received if a Principal
Prepayment in full had been made with respect to such Mortgage Loan (or, in the
case of an REO Property related to an A/B Mortgage Loan, a Principal Prepayment
in full had been made with respect to both the related A Note and B Note) on the
date such proceeds were received.
"EXCESS SERVICING FEE" means, with respect to the Mortgage Loans for
which an "excess servicing fee rate" is designated on the Mortgage Loan
Schedule, the monthly fee payable to (a) Xxxxx Fargo Bank, National Association
or its successors and assigns, and (b) JHREF, or its successors and assigns,
each as holder of excess servicing rights, which fee shall accrue on the
Scheduled Principal Balance of each such Mortgage Loan immediately prior to the
Due Date occurring in each month at the per annum rate (determined in the same
manner as the applicable Mortgage Rate for such Mortgage Loan is determined for
such month) specified on the Mortgage Loan Schedule (the "Excess Servicing Fee
Rate"). Each holder of excess servicing rights is entitled to Excess Servicing
Fees only with respect to the Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE CERTIFICATION" means an Exchange Certification substantially
in the form set forth in Exhibit H hereto executed by a holder of an interest in
a Regulation S Global Certificate or a Rule 144A-IAI Global Certificate, as
applicable.
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"EXEMPTION" means each of the individual prohibited transaction
exemptions granted by the United States Department of Labor to the Underwriters,
as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust of an
Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in Section 2.2.
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with respect to
any Mortgage Loan, B Note or Specially Serviced Mortgage Loan by the Master
Servicer in consultation with the Special Servicer in respect of any Defaulted
Mortgage Loan (including a Mortgage Loan or B Note that became an REO Property),
in each case, in its good faith discretion, consistent with the Servicing
Standard, that all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds, Purchase Proceeds and other payments or recoveries which the Master
Servicer or the Special Servicer, as the case may be, expects to be finally
recoverable on such Mortgage Loan or B Note, without regard to any obligation of
the Master Servicer, the Trustee or the Fiscal Agent, as the case may be, to
make payments from its own funds pursuant to Article IV hereof, have been
recovered. The Special Servicer shall be required to provide the Master Servicer
with prompt written notice of any Final Recovery Determination with respect to
any Specially Serviced Mortgage Loan upon making such determination. The Master
Servicer shall notify the Trustee and the Paying Agent of such determination and
the Paying Agent shall deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of rated
Certificates, the Distribution Date on which such Class would be paid in full if
payments were made on the Mortgage Loans in accordance with their terms, except
that ARD Loans are assumed to be repaid on their Anticipated Repayment Dates.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in Section
4.7 hereof.
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"FIXED INTEREST DISTRIBUTION" means with respect to the Class A-2
Regular Interest, the payments of interest required to be made in respect of
each Distribution Date, commencing in December 2001, by the Master Servicer on
behalf of the Trustee to the Swap Counterparty pursuant to the Swap Contract at
a fixed interest rate equal to the Pass-Through Rate of the Class A-2 Regular
Interest on the Floating Rate Certificate Notional Amount.
"FLOATING RATE ACCOUNT" means the Eligible Account or Accounts
established and maintained by the Paying Agent or the Master Servicer on behalf
of the Trustee with respect to the Class A-2 Certificates, which shall be
entitled "Xxxxx Fargo Bank Minnesota, National Association as Paying Agent on
behalf of LaSalle Bank National Association, as Trustee, in trust for Holders of
Bear Xxxxxxx Commercial Mortgage Securities Trust 2001-TOP4, Floating Rate
Account, Class A-2"; provided, that the Floating Rate Account may be a
subaccount of the Distribution Account or the Certificate Account. The Floating
Rate Account shall be an asset of the Class A-2 Grantor Trust.
"FLOATING RATE CERTIFICATE NOTIONAL AMOUNT" means a notional amount
equal to the Certificate Principal Balance of the Class A-2 Regular Interest.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global Certificate,
Regulation S Temporary Global Certificate or Regulation S Permanent Global
Certificate.
"HOLDER" means the Person in whose name a Certificate is registered on
the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class of
Certificate sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any Accountants, a
Person who is "independent" within the meaning of Rule 2-01(B) of the Securities
and Exchange Commission's Regulation S-X. Independent means, when used with
respect to any other Person, a Person who (A) is in fact independent of another
specified Person and any Affiliate of such other Person, (B) does not have any
material direct or indirect financial interest in such other Person or any
Affiliate of such other Person, (C) is not connected with such other Person or
any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any Mortgage
Loan (A) that is not a Specially Serviced Mortgage Loan, any Person designated
by the Master Servicer (other than the Master Servicer, but which may be an
Affiliate of the Master Servicer), or (B) that is a Specially Serviced Mortgage
Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC within the meaning of Section
856(d)(3) of the Code if such REMIC were a real estate investment trust (except
that the ownership test set forth in such Section shall be considered to be met
by any Person that owns,
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directly or indirectly, 35% or more of the Aggregate Certificate Balance or
Notional Amount, as the case may be, of any Class of the Certificates (other
than the Class R-III Certificates), a Percentage Interest of 35% or more in the
Class R-III Certificates or such other interest in any Class of the Certificates
or of the applicable REMIC as is set forth in an Opinion of Counsel, which shall
be at no expense to the Trustee or the Trust) so long as such REMIC does not
receive or derive any income from such Person and provided that the relationship
between such Person and such REMIC is at arm's length, all within the meaning of
Treasury Regulation Section 1.856-4(b)(5), or (ii) any other Person (including
the Master Servicer or the Special Servicer) upon receipt by the Trustee of an
Opinion of Counsel, which shall be at the expense of the Person delivering such
opinion to the Trustee, to the effect that the taking of any action in respect
of any REO Property by such Person, subject to any conditions therein specified,
that is otherwise herein contemplated to be taken by an Independent Contractor
will not cause such REO Property to cease to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code), or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"INITIAL CERTIFICATION" has the meaning set forth in Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on the
Mortgage Loans from the Cut-Off Date to and excluding the initial Closing Date.
"INSPECTION REPORT" means the report delivered by the Master Servicer
or the Special Servicer, as the case may be, substantially in the form of
Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of Regulation D
of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in Section
9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard Insurance
Policy, flood insurance policy, title insurance policy or Environmental
Insurance Policy relating to the Mortgage Loans or the Mortgaged Properties in
effect as of the initial Closing Date or thereafter during the term of this
Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under any
Insurance Policy, other than amounts required to be paid over to the Mortgagor
pursuant to law, the related Mortgage Loan, the related B Note or the Servicing
Standard, and with respect to the Mortgaged Property securing the 2001-TOP3
Mortgage Loan and the Pari Passu Loan, any portion of such amounts payable to
the holder of the Pari Passu Loan.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B Mortgage Loan,
the related intercreditor agreement by and between the holder of the related A
Note and the holder of the related B Note relating to the relative rights of
such holders of the respective A Note and B Note, as the same may be further
amended from time to time in accordance with the terms thereof. There are no
Intercreditor Agreements in connection with A/B Mortgage Loans related to the
Trust.
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"INTEREST" means a REMIC I Interest, a REMIC II Interest or the Class
A-2 Regular Interest, as applicable.
"INTEREST ACCRUAL PERIOD" means, with respect to each Distribution
Date, with respect to all Classes of Certificates (other than the Class A-2
Certificates and the Residual Certificates) and Interests (including the Class
A-2 Regular Interest), the period beginning on the first day of the month
preceding the month in which such Distribution Date occurs and ending on the
last day of the month preceding the month in which such Distribution Date
occurs, and with respect to the Class A-2 Certificates, the period from (and
including) the prior Distribution Date (or the Closing Date, in the case of the
first such period) and ending on (and including) the day before the current
Distribution Date.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section 5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which bear
interest other than on the basis of a 360-day year consisting of twelve (12)
30-day months.
"INTEREST RESET DATE" means the day that is two Banking Days prior to
the start of the related Interest Accrual Period.
"INTERESTED PERSON" means, as of any date of determination, the Master
Servicer, the Special Servicer, the Depositor, the holder of any related Junior
Indebtedness (with respect to any particular Mortgage Loan), a holder of 50% or
more of the Controlling Class, the Operating Adviser, any Independent Contractor
engaged by the Master Servicer or the Special Servicer pursuant to this
Agreement, or any Person actually known to a Responsible Officer of the Trustee
to be an Affiliate of any of them.
"JHREF" has the meaning assigned in the Preliminary Statement hereto.
"JHREF LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement I and shown on Schedule I
hereto.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor that is
secured by a lien that is junior in right of payment to the lien of the Mortgage
securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan or B Note,
all amounts received during any Collection Period, whether as late payments or
as Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, Purchase
Proceeds or otherwise, that represent payments or collections of Scheduled
Payments due but delinquent for a previous Collection Period and not previously
recovered.
"LATE FEES" means a fee payable to the Master Servicer or the Special
Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan or B Note in connection with
a late payment made by such Mortgagor.
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"LIBOR" means with respect to each Interest Accrual Period, the per
annum rate for deposits in U.S. dollars for a period of one month, which appears
on the Telerate page 3750 as the "London Interbank Offering Rate" as of 11:00
a.m., London time, on the Interest Reset Date. If such rate does not appear on
said Telerate page 3750, LIBOR shall be the arithmetic mean of the offered
quotations obtained by the Swap Counterparty from the principal London office of
four major banks in the London interbank market selected by the Swap
Counterparty in its sole discretion (each, a "Reference Bank") for rates at
which deposits in U.S. dollars are offered to prime banks in the London
interbank market for a period of one month in an amount that is representative
for a single transaction in the relevant market at the relevant time as of
approximately 11:00 a.m., London time, on the Interest Reset Date. If fewer than
two Reference Banks provide the Swap Counterparty with such quotations, LIBOR
shall be the rate per annum which the Swap Counterparty determines to be the
arithmetic mean of the rates quoted by major banks in New York City, New York
selected by the Swap Counterparty at approximately 11:00 a.m. New York City time
on the first day of the Interest Accrual Period for loans in U.S. dollars to
leading European banks for a period of one month in an amount that is
representative for a single transaction in the relevant market at the relevant
time. One-month LIBOR for the initial Interest Accrual Period is 2.19%.
"LIQUIDATION EXPENSES" means reasonable and direct expenses incurred by
the Special Servicer on behalf of the Trust in connection with the enforcement
and liquidation of any Specially Serviced Mortgage Loan or REO Property acquired
in respect thereof including, without limitation, reasonable legal fees and
expenses, appraisal fees, committee or referee fees, property manager fees, and,
if applicable, brokerage commissions and conveyance taxes for such Specially
Serviced Mortgage Loan. All Liquidation Expenses relating to enforcement and
disposition of the Specially Serviced Mortgage Loan shall be (i) paid out of
income from the related REO Property, to the extent available or (ii) advanced
by the Master Servicer, subject to Section 4.4 and Section 4.6(e) hereof, as a
Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0% and (y)
the Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property and any Condemnation Proceeds
received by the Trust (other than Liquidation Proceeds received in connection
with the Pari Passu Loan); provided, however, that (i) in the case of a final
disposition consisting of the repurchase of a Mortgage Loan or REO Property by a
Seller pursuant to Section 2.3, such fee will only be paid by such Seller if
repurchased after the date that is 180 days after the applicable Seller receives
notice of the breach or defect causing the repurchase, and (ii) in the case of
an A/B Mortgage Loan, such fee will not be payable if the holder of the related
B Note, within 15 days after receipt of notice that a Servicing Transfer Event
has occurred with respect to the related A Note or the B Note, exercises its
option to purchase the A Note pursuant to the Intercreditor Agreement; provided,
that this clause (ii) shall not be applicable if the holder of the related B
Note has exercised its right to cure three consecutive monetary defaults under
the Intercreditor Agreement and a monetary default occurs in the following
month.
"LIQUIDATION PROCEEDS" means proceeds from the sale or liquidation of a
Mortgage Loan or B Note or related REO Property, net of Liquidation Expenses and
any related Advances and interest thereon (to the extent not otherwise paid
pursuant to Section 4.6(c)) and
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with respect to the sale or liquidation of any REO Property related to the
2001-TOP3 Mortgage Loan and the Pari Passu Loan, any portion of such amounts
allocable to the Pari Passu Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each Mortgage Loan
or REO Property, as the case may be, as to which a Cash Liquidation or REO
Disposition has occurred, an amount equal to the sum, without duplication, of
(A) the Principal Balance of the Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan) as of the date of the Cash Liquidation or REO
Disposition, plus (B) unpaid interest and interest accrued thereon at the
applicable Mortgage Rate, plus (C) any expenses incurred in connection with such
Mortgage Loan that are reimbursable to any Person, other than amounts previously
treated as Expense Losses or included in the definition of Liquidation Expenses
minus the sum of (i) REO Income applied as recoveries of principal or interest
on the related Mortgage Loan or REO Property, and (ii) Liquidation Proceeds,
Late Collections and all other amounts recovered from the related Mortgagor and
received during the Collection Period in which such Cash Liquidation or REO
Disposition occurred and which are not required under any Intercreditor
Agreement to be payable or reimbursable to any holder of a B Note. REO Income
and Liquidation Proceeds shall be applied first against any Expense Losses (to
the extent not included in the definition of Liquidation Expenses) for such
Mortgage Loan, the unpaid interest on the Mortgage Loan, calculated as described
in clause (B) above, and then against the Principal Balance of such Mortgage
Loan, calculated as described in clause (A) above.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Principal Balance of such Mortgage Loan at the date of determination and the
denominator of which is the value of the Mortgaged Property as shown on the most
recent Appraisal or valuation of the Mortgaged Property which is available as of
such date.
"LOCK-BOX ACCOUNT" has the meaning set forth in Section 8.3(g).
"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan, any
lock-box agreement relating to such Mortgage Loan among the related Mortgagor, a
depositary institution and the Master Servicer pursuant to which a Lock-Box
Account is created.
"LOSSES" has the meaning set forth in Section 12.4.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association and its
permitted successors or assigns.
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution Date,
the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by the
Master Servicer and in such media as may be agreed upon by the Master Servicer
and the Paying Agent containing such information regarding the Mortgage Loans as
will permit the Paying Agent to calculate the amounts to be distributed to the
Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
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hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICER'S FLOATING RATE ACCOUNT" has the meaning set forth in
Section 5.3(c).
"MASTER SERVICING FEE" means for each calendar month, as to each
Mortgage Loan and B Note (including REO Mortgage Loans and Defeasance Loans), an
amount equal to the Master Servicing Fee Rate applicable to such month
(determined in the same manner (other than the rate of accrual) as the
applicable Mortgage Rate is determined for such Mortgage Loan or B Note for such
month) multiplied by the Scheduled Principal Balance of such Mortgage Loan or B
Note immediately before the Due Date occurring in such month, subject to
reduction in respect of Compensating Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each Mortgage Loan
and any B Note (including any Mortgage Loan relating to an REO Property), the
rate per annum specified as such on the Mortgage Loan Schedule.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in Section 2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan or B Note as
of any date of determination, the date on which the last payment of principal is
due and payable under the related Mortgage Loan or B Note, after taking into
account all Principal Prepayments received and any Deficient Valuation, Debt
Service Reduction Amount or modification of the Mortgage Loan or B Note
occurring prior to such date of determination, but without giving effect to (i)
any acceleration of the principal of such Mortgage Loan or B Note or (ii) any
grace period permitted by the related Mortgage Loan or B Note.
"MODIFICATION FEE" means a fee, if any, collected from a Mortgagor by
the Master Servicer in connection with a modification of any Mortgage Loan or B
Note other than a Specially Serviced Mortgage Loan or collected by the Special
Servicer in connection with the modification of a Specially Serviced Mortgage
Loan.
"MODIFICATION LOSS" means, with respect to each Mortgage Loan, (i) a
decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan or B Note, the
Maturity Date, Mortgage Rate, Principal Balance, amortization term or payment
frequency thereof or any provision thereof requiring the payment of a prepayment
premium, yield
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maintenance payment or percentage premium in connection with a principal
prepayment (and shall not include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided pursuant to
Section 5.4 by the Paying Agent monthly as of the related Determination Date
generally in the form and substance of Exhibit M, which sets forth, to the
extent applicable: (i) the amount, if any, of such distributions to the holders
of each Class of Principal Balance Certificates applied to reduce the respective
Certificate Balances thereof; (ii) the amount of such distribution to holders of
each Class of Certificates allocable to (A) interest accrued at the respective
Pass-Through Rates, less any Net Aggregate Prepayment Interest Shortfalls and
(B) Prepayment Premiums (including Prepayment Premiums distributed in respect of
the Class A-2 Regular Interest and paid to the Swap Counterparty); (iii) the
number of outstanding Mortgage Loans and the aggregate Principal Balance and
Scheduled Principal Balance of the Mortgage Loans at the close of business on
such Determination Date; (iv) the number and aggregate Scheduled Principal
Balance of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days,
(C) delinquent 90 or more days, (D) as to which foreclosure proceedings have
been commenced, or (E) as to which bankruptcy proceedings have been commenced;
(v) with respect to any REO Property included in the Trust, the Principal
Balance of the related Mortgage Loan as of the date of acquisition of the REO
Property and the Scheduled Principal Balance thereof; (vi) as of the related
Determination Date (A) as to any REO Property sold during the related Collection
Period, the date of the related determination by the Special Servicer that it
has recovered all payments which it expects to be finally recoverable and the
amount of the proceeds of such sale deposited into the Certificate Account, and
(B) the aggregate amount of other revenues collected by the Special Servicer
with respect to each REO Property during the related Collection Period and
credited to the Certificate Account, in each case identifying such REO Property
by the loan number of the related Mortgage Loan; (vii) the Aggregate Certificate
Balance or Notional Amount, as the case may be, of each Class of Certificates
before and after giving effect to the distribution made on such Distribution
Date; (viii) the aggregate amount of Principal Prepayments made during the
related Collection Period; (ix) the Pass-Through Rate applicable to each Class
of Certificates for such Distribution Date; (x) the aggregate amount of the
Master Servicing Fee, the Primary Servicing Fee, the Special Servicing Fee, the
Excess Servicing Fees and the fees paid to the 2001-TOP3 Master Servicer and the
fees paid to the 2001-TOP3 Special Servicer; (xi) the amount of Unpaid Interest
and Realized Losses, if any, incurred with respect to the Mortgage Loans,
including a breakout by type of such Realized Losses; (xii) the aggregate amount
of Servicing Advances and P&I Advances outstanding separately stated that have
been made by the Master Servicer, the Trustee and the Fiscal Agent and the
aggregate amount of Servicing Advances and P&I Advances made by the 2001-TOP3
Master Servicer in respect of the Pari Passu Loan and the 2001-TOP3 Mortgage
Loan; (xiii) the amount of any Appraisal Reductions effected during the related
Collection Period on a loan-by-loan basis and the total Appraisal Reductions in
effect as of such Distribution Date; (xiv) the amounts received in respect of
the Swap Contract or the amounts paid in respect of the Swap Contract and, if
any of such amounts are less than the full amount required to be paid under the
Swap Contract, the amount of the shortfall; (xv) the identification of any
Rating Agency Trigger Event or Swap Default as of the close of business on the
last day of the immediately preceding calendar month with respect to the Swap
Contract (including, if applicable, the notice required by Section 6.12); (xvi)
the amount of any (x) payment by the Swap Counterparty as a termination payment,
(y) payment to any successor interest rate swap counterparty to acquire a
replacement interest rate swap
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agreement, and (z) collateral posted in connection with any Rating Agency
Trigger Event; and (xvii) the amount of and identification of any payments on
the Class A-2 Certificates in addition to the amount of principal and interest
due thereon, such as any payment received in connection with the Swap Contract
or any payment of a Prepayment Premium after the termination of the Swap
Contract that is required to be distributed on the Class A-2 Certificates
pursuant to the terms of this Agreement. In the case of information furnished
pursuant to subclauses (i), (ii) and (xi) above, the amounts shall be expressed
in the aggregate and as a dollar amount per $1,000 of original principal amount
of the Certificates for all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its successor in
interest.
"MORTGAGE" means the mortgage, deed of trust or other instrument
securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4, without
recourse, representation or warranty" or if the original Mortgage Note is not
included therein, then a lost note affidavit with a copy of the Mortgage Note
attached thereto;
(ii) the original Mortgage, with evidence of recording thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a certified true copy
of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed) or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 45th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Depositor shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (A) in the case of a delay caused by the public
recording office, an Officer's Certificate of the applicable Seller stating that
such original Mortgage has been sent to the appropriate public recording
official for recordation or (B) in the case of an original Mortgage that has
been lost after recordation, a certification by the appropriate county recording
office where such Mortgage is recorded that such copy is a true and complete
copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (which are reflected in the Mortgage Loan
Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true copies of such modifications, consolidations and
extensions certified by the applicable Seller together with (A) in the case of a
delay caused by the public recording office, an Officer's
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Certificate of the applicable Seller stating that such original modification,
consolidation or extension agreement has been dispatched or sent to the
appropriate public recording official for recordation or (B) in the case of an
original modification, consolidation or extension agreement that has been lost
after recordation, a certification by the appropriate county recording office
where such document is recorded that such copy is a true and complete copy of
the original recorded modification, consolidation or extension agreement, and
the originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of record in blank
or in favor of "LaSalle Bank National Association, as Trustee for Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4;"
(v) originals of all intervening assignments of Mortgage, if any, with
evidence of recording thereon or, if such original assignments of Mortgage have
been delivered to the appropriate recorder's office for recordation, certified
true copies of such assignments of Mortgage certified by the applicable Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the applicable Seller, a copy thereof certified by the applicable
Seller or, if any original intervening assignment of Mortgage has not yet been
returned on or prior to the 45th day following the Closing Date from the
applicable recording office or has been lost, a true and correct copy thereof,
together with (A) in the case of a delay caused by the public recording office,
an Officer's Certificate of the applicable Seller stating that such original
intervening assignment of Mortgage has been sent to the appropriate public
recording official for recordation or (B) in the case of an original intervening
assignment of Mortgage that has been lost after recordation, a certification by
the appropriate county recording office where such assignment is recorded that
such copy is a true and complete copy of the original recorded intervening
assignment of Mortgage;
(vi) if the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of recording thereon or,
if such Assignment of Leases has not been returned on or prior to the 45th day
following the Closing Date from the applicable public recording office, a copy
of such Assignment of Leases certified by the applicable Seller to be a true and
complete copy of the original Assignment of Leases submitted for recording,
together with (A) an original of each assignment of such Assignment of Leases
with evidence of recording thereon and showing a complete recorded chain of
assignment from the named assignee to the holder of record, and if any such
assignment of such Assignment of Leases has not been returned from the
applicable public recording office, a copy of such assignment certified by the
applicable Seller to be a true and complete copy of the original assignment
submitted for recording, and (B) an original assignment of such Assignment of
Leases, in recordable form, signed by the holder of record in favor of "LaSalle
Bank National Association, as Trustee for Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-TOP4," which assignment may be effected in the related Assignment of
Mortgage;
(vii) the original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
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(viii) the original Title Insurance Policy or in the event such
original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all assignments
thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee executed and
delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), if any, related to any
Mortgage Loan where the Mortgagor is the lessee under such ground lease and
there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, the Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage note
evidencing the related B Note), if any, related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the Primary Servicer (or the Master Servicer), and applied, drawn,
reduced or released in accordance with documents evidencing or securing the
applicable Mortgage Loan, this Agreement and the applicable Primary Servicing
Agreement or (B) the original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, which shall be held by the Primary
Servicer (or the Master Servicer) on behalf of the Trustee, with a copy to be
held by the Trustee, and applied, drawn, reduced or released in accordance with
documents evidencing or securing the applicable Mortgage Loan, this Agreement
and the applicable Primary Servicing Agreement (it being understood that each
Seller has agreed (a) that the proceeds of such letter of credit belong to the
Trust, (b) to notify, on or before the Closing Date, the bank issuing the letter
of credit that the letter of credit and the proceeds thereof belong to the
Trust, and to use reasonable efforts to obtain within 30 days (but in any event
to obtain within 90 days) following the Closing Date, an acknowledgement thereof
by the bank (with a copy of such acknowledgement to be sent to the Trustee) and
(c) to indemnify the Trust for any liabilities, charges, costs, fees or other
expenses accruing from the failure of the Seller to assign the letter of credit
hereunder). In the case of clause (B) above, each Primary Servicer (and the
Master Servicer) acknowledges that any letter of credit held by it shall be held
in its capacity as agent of the Trust, and if a Primary Servicer (or Master
Servicer) sells its rights to service the applicable Mortgage Loan, the
applicable Primary Servicer (or Master Servicer) will assign the applicable
letter of credit to the Trust or at the direction of the Special Servicer to
such party as the Special Servicer may instruct, in each case, at the expense of
the Primary Servicer (or Master Servicer). The Primary Servicer (or Master
Servicer) shall indemnify the Trust for any loss caused by the ineffectiveness
of such assignment;
(xiii) the original environmental indemnity agreement, if any, related
to any Mortgage Loan;
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(xiv) third-party management agreements for hotels and mortgaged
properties securing Mortgage Loans with a Cut-Off Date Principal Balance equal
to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to the Pari Passu Loan, a copy of the Pari Passu
Intercreditor Agreement and a copy of the 2001-TOP3 Pooling and Servicing
Agreement.
With respect to the Pari Passu Loan, the preceding document delivery
requirements will be met by the delivery by the Depositor of copies of the
documents specified above (other than the Mortgage Note (and all intervening
endorsements) evidencing the Pari Passu Loan, with respect to which the
originals shall be required), including a copy of the Pari Passu Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage, and all
amendments and modifications thereof, identified on the Mortgage Loan Schedule,
as amended from time to time, and conveyed, transferred, sold, assigned to or
deposited with the Trustee pursuant to Section 2.1 or Section 2.3, and Mortgage
Loan shall also include any Defeasance Loan and the Pari Passu Loan (but shall
not include the 2001-TOP3 Mortgage Loan) and with respect to any A/B Mortgage
Loan, shall include the A Note (but shall not include the related B Note).
"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan Purchase
Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan Purchase
Agreement III, Mortgage Loan Purchase Agreement IV or Mortgage Loan Purchase
Agreement V, as the case may be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain Mortgage Loan
Purchase Agreement between JHREF and the Depositor dated as of October 31, 2001
with respect to the JHREF Loans, a form of which is attached hereto as Exhibit
K-1.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain Mortgage Loan
Purchase Agreement between Xxxxx Fargo and the Depositor dated as of October 31,
2001 with respect to the Xxxxx Fargo Loans, a form of which is attached hereto
as Exhibit K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain Mortgage Loan
Purchase Agreement between Principal and the Depositor dated as of October 31,
2001 with respect to the Principal Loans, a form of which is attached hereto as
Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain Mortgage Loan
Purchase Agreement between BSF and the Depositor dated as of October 31, 2001
with respect to the BSF Loans, a form of which is attached hereto as Exhibit
K-4.
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"MORTGAGE LOAN PURCHASE AGREEMENT V" means that certain Mortgage Loan
Purchase Agreement between MSDWMC and the Depositor dated as of October 31, 2001
with respect to the MSDWMC Loans, a form of which is attached hereto as Exhibit
K-5.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively the
schedule attached hereto as Schedule I, which identifies each JHREF Loan, the
schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo Loan,
the schedule attached hereto as Schedule III, which identifies each Principal
Loan, the schedule attached hereto as Schedule IV, which identifies each BSF
Loan and the schedule attached hereto as Schedule V, which identifies each
MSDWMC Loan as such schedules may be amended from time to time pursuant to
Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan or B Note, the per
annum rate at which interest accrues on such Mortgage Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note.
"MORTGAGEE" means, with respect to any Mortgage as of any date of
determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSDWMC" has the meaning assigned in the Preliminary Statement hereto.
"MSDWMC LOANS" means, collectively, those Mortgage Loans sold to the
Depositor pursuant to the Mortgage Loan Purchase Agreement V and shown on
Schedule V hereto.
"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the Compensating Interest
to be paid by the Master Servicer on such Distribution Date and (B) the
aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans.
"NET SWAP PAYMENT" has the meaning set forth in Section 8.30(e).
"NEW LEASE" means any lease of any REO Property entered into on behalf
of the Trust, including any lease renewed or extended on behalf of the Trust if
the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
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"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of Counsel to the
effect that a contemplated action will neither cause any REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding nor cause a
"prohibited transaction," "prohibited contribution" or any other tax (other than
a tax on "net income from foreclosure property" permitted to be incurred under
this Agreement) to be imposed on any REMIC Pool or the Trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that is a
"noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of Certificates
that, at the time of transfer, is not rated in one of the four highest generic
rating categories by at least one of S&P or Moody's.
"NONRECOVERABLE ADVANCE" means any of the following: (i) the Pari Passu
Loan Nonrecoverable P&I Advances (including interest accrued thereon at the
Advance Rate); (ii) the Pari Passu Loan Nonrecoverable Servicing Advances
(including interest accrued thereon at the Advance Rate) and (iii) the portion
of any Advance (including interest accrued thereon at the Advance Rate)
previously made or proposed to be made by the Master Servicer, the Trustee or
the Fiscal Agent that, in its respective sole discretion, exercised in good
faith and, with respect to the Master Servicer, in accordance with the Servicing
Standard, will not be or, in the case of a current delinquency, would not be,
ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds (or from any other collections) with
respect to the related Mortgage Loan (in the case of P&I Advances and Servicing
Advances) or B Note (in the case of Servicing Advances) or REO Property (in the
case of P&I Advances and Servicing Advances), as evidenced by an Officer's
Certificate delivered pursuant to Section 4.4. Such Officer's Certificate shall
be delivered to the Trustee (upon which the Trustee may conclusively rely) or to
the Depositor (if the Trustee or the Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer and the Paying Agent
in the time periods as specified in Section 4.4 and shall include the
information and reports set forth in Section 4.4. In determining whether an
Advance with respect to any Mortgage Loan (in the case of P&I Advances and
Servicing Advances) or B Note (in the case of Servicing Advances) will be
recoverable, the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, shall take into account amounts that may be realized on the related
Mortgaged Property in its "as is" or then current condition and occupancy.
Absent bad faith, the Master Servicer's determination as to the recoverability
of any Advance shall be conclusive and binding on the Certificateholders and, in
the case of any B Note, the holder of the B Note, and may, in all cases, be
relied on by the Trustee and the Fiscal Agent. Absent bad faith or breach of the
servicing standard under the 2001-TOP3 Pooling and Servicing Agreement, the
determination as to the recoverability of any advance made with respect to the
Pari Passu Loan pursuant to the 2001-TOP3 Pooling and Servicing Agreement shall
be conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee, the Fiscal Agent and the Master Servicer.
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"NON-REGISTERED CERTIFICATE" means unless and until registered under
the Securities Act, any Class X, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i) with
respect to all of the Class X-1 Certificates as a Class, the Class X-1 Notional
Amount as of such date of determination; (ii) with respect to any Class X-1
Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the Depositor, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, the President, or any Senior Vice President, Vice
President or Assistant Vice President and (z) in the case of the Paying Agent, a
certificate signed by a Responsible Officer, each with specific responsibilities
for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall have the meaning specified in Section
9.37(a).
"OPERATING STATEMENT ANALYSIS REPORT" means a report which is one
element of the MBA/CMSA Methodology for Analyzing and Reporting Property Income
Statements and which is substantially in the form of Exhibit N.
"OPINION OF COUNSEL" means a written opinion of counsel addressed to
the Trustee and the Paying Agent, reasonably acceptable in form and substance to
the Trustee and the Paying Agent, and who is not in-house counsel to the party
required to deliver such opinion but who, in the good faith judgment of the
Trustee and the Paying Agent, is Independent outside counsel knowledgeable of
the issues occurring in the practice of securitization with respect to any such
opinion of counsel concerning the taxation, or status as a REMIC for tax
purposes, of the Trust or any REMIC Pool.
"OWNERSHIP INTEREST" means, as to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage Loan or
Specially Serviced Mortgage Loan as to which all or a portion of the Scheduled
Payment (other than a Balloon Payment) due during the related Collection Period
was not received by the Master
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Servicer as of the related Determination Date (subject to Section 5.1(h)), the
portion of such Scheduled Payment not received; (ii) with respect to any Balloon
Mortgage Loan (including any REO Property as to which the related Mortgage Loan
provided for a Balloon Payment) as to which a Balloon Payment was due during or
prior to the related Collection Period but was delinquent, in whole or in part,
as of the related Determination Date, an amount equal to the excess, if any, of
the Assumed Scheduled Payment for such Balloon Mortgage Loan for the related
Collection Period, over any Late Collections received in respect of such Balloon
Payment during such Collection Period; and (iii) with respect to each REO
Property, an amount equal to the excess, if any, of the Assumed Scheduled
Payment for the Mortgage Loan to such REO Property during the related Collection
Period, over remittances of REO Income to the Master Servicer by the Special
Servicer, reduced by any amounts required to be paid as taxes on such REO Income
(including taxes imposed pursuant to Section 860G(c) of the Code); provided,
however, that the interest portion of any Scheduled Payment or Assumed Scheduled
Payment shall be advanced at a per annum rate equal to the sum of the REMIC I
Net Mortgage Rate relating to such Mortgage Loan or REO Mortgage Loan and the
Trustee Fee Rate, such that the Scheduled Payment or Assumed Scheduled Payment
to be advanced as a P&I Advance shall be net of the Master Servicing Fee, the
Excess Servicing Fee and the Primary Servicing Fees; and provided, further, that
the Scheduled Payment or Assumed Scheduled Payment for any Mortgage Loan which
has been modified shall be calculated based on its terms as modified and
provided, further, that the amount of any P&I Advance with respect to a Mortgage
Loan as to which there has been an Appraisal Reduction will be an amount equal
to the product of (i) the amount of interest required to be advanced without
giving effect to this proviso and (ii) a fraction, the numerator of which is the
Principal Balance of such Mortgage Loan as of the immediately preceding
Determination Date less any Appraisal Reduction applicable to such Mortgage Loan
and the denominator of which is the Principal Balance of such Mortgage Loan as
of such Determination Date. All P&I Advances for any Mortgage Loans that have
been modified shall be calculated on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan or REO
Property, the amount of the P&I Advance for each Mortgage Loan computed for any
Distribution Date.
"PARI PASSU INTERCREDITOR AGREEMENT" means that certain intercreditor
agreement dated July 30, 2001 by and between Xxxxx Fargo Bank, National
Association and the initial holder of the 2001-TOP3 Mortgage Loan relating to
the relative rights of the holder of the Pari Passu Loan and the holder of such
2001-TOP3 Mortgage Loan, as the same may be further amended from time to time.
"PARI PASSU LOAN" means the Mortgage Loan designated as Mortgage Loan
No. 6 on the Mortgage Loan Schedule and which is secured on a pari passu basis
with the 2001-TOP3 Mortgage Loan pursuant to the Pari Passu Mortgage.
"PARI PASSU LOAN SERVICING FEE RATE" means the "Master Servicing Fee
Rate" applicable to the Pari Passu Loan as defined in the 2001-TOP3 Pooling and
Servicing Agreement.
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"PARI PASSU LOAN NONRECOVERABLE P&I ADVANCE" means any "Nonrecoverable
P&I Advance" (as defined in the 2001-TOP3 Pooling and Servicing Agreement) made
with respect to the Pari Passu Loan pursuant to and in accordance with the
2001-TOP3 Pooling and Servicing Agreement.
"PARI PASSU LOAN NONRECOVERABLE SERVICING ADVANCE" means any
"Nonrecoverable Servicing Advance" (as defined in the 2001-TOP3 Pooling and
Servicing Agreement) made with respect to the Pari Passu Loan pursuant to and in
accordance with the 2001-TOP3 Pooling and Servicing Agreement; provided that if
the 2001-TOP3 Master Servicer shall have made a "Servicing Advance" (as defined
in the 2001-TOP3 Pooling and Servicing Agreement) in the nature of an
expenditure benefiting the related Mortgaged Property generally, the portion
thereof attributable to the Pari Passu Loan shall be determined based on the
outstanding balances of the Pari Passu Loan and the 2001-TOP3 Mortgage Loan on
the date such advance was made.
"PARI PASSU MORTGAGE" means the Mortgage securing the 2001-TOP3
Mortgage Loan and the Pari Passu Loan.
"PARTICIPANT" means a broker, dealer, bank, other financial institution
or other Person for whom the Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect to any
Class of REMIC I Regular Interests, REMIC II Regular Interests, Class A-2
Regular Interest, REMIC III Certificates, or Class A-2 Certificates, other than
the X Certificates, for the first Distribution Date, the rate set forth in the
Preliminary Statement hereto. For any Distribution Date occurring thereafter,
the Pass-Through Rates for (i) the REMIC I Regular Interests shall equal the
REMIC I Net Mortgage Rate on the related Mortgage Loan for such Distribution
Date, (ii) the REMIC II Regular Interests shall equal the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date, (iii) the Class A-1, Class A-3,
Class B, Class C and Class D Certificates, the fixed rate corresponding to such
Class set forth in the Preliminary Statement hereto, (iv) the Class A-2
Certificates, the per annum rate equal to LIBOR plus 0.45%, provided, however,
that under the circumstances set forth in Section 6.12 regarding defaults or
terminations under the Swap Contract, the Pass-Through Rate of the Class A-2
Certificates shall equal the Pass-Through Rate of the Class A-2 Regular
Interest, (v) the Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates shall equal the lesser of (A) the fixed rate corresponding to
such Class set forth in the Preliminary Statement hereto and (B) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date, (vi) the Class E
Certificates, the lesser of (A) the fixed rate corresponding to such Class set
forth in the Preliminary Statement hereto and (B) the Weighted Average REMIC I
Net Mortgage Rate for such Distribution Date, (vii) the Class F Certificates,
the lesser of (A) the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto and (B) the Weighted Average REMIC I Net Mortgage
Rate for such Distribution Date, (viii) the Class X-1 Certificates, the per
annum rate equal to the product of the Accrued Certificate Interest thereon for
such Distribution Date and 12, divided by the Class X-1 Notional Amount, (ix)
the Class X-2 Certificates, the per annum rate equal to the product of the
Accrued Certificate Interest thereon for such Distribution Date and 12, divided
by the Class X-2 Notional Amount, and (x) the Class A-2 Regular Interest, 5.50%.
The Pass-
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Through Rate for the Class A-2A Component and the Class A-2B Component shall
equal the Pass-Through Rate of the Class A-2 Regular Interest.
"PAYING AGENT" means Xxxxx Fargo Bank Minnesota, National Association
and any successor or assign, as provided herein.
"PAYING AGENT FEE" means the portion of the Trustee Fee payable to the
Paying Agent in an amount agreed to between the Trustee and the Paying Agent.
"PERCENTAGE INTEREST" means with respect to each Class of Certificates
other than the Residual Certificates, the fraction of such Class evidenced by
such Certificate, expressed as a percentage (carried to four decimal places and
rounded, if necessary), the numerator of which is the Certificate Balance or
Notional Amount, as applicable, represented by such Certificate determined as of
the Closing Date (as stated on the face of such Certificate) and the denominator
of which is the Aggregate Certificate Balance or Notional Amount, as applicable,
of all of the Certificates of such Class determined as of the Closing Date. With
respect to each Residual Certificate, the percentage interest in distributions
(if any) to be made with respect to the relevant Class, as stated on the face of
such Certificate.
"PERMITTED TRANSFEREE" means any Transferee other than a Disqualified
Organization.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an Independent Person
who regularly conducts environmental site assessments in accordance with then
current standards imposed by institutional commercial mortgage lenders and who
has a reasonable amount of experience conducting such assessments.
"PLACEMENT AGENT" means each of Bear, Xxxxxxx & Co. Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage
Services, LLC or its respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor regulations set
forth in 29 C.F.R.ss.2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date and the
related Collection Period, during which a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) is made after the Due Date for
such Mortgage Loan through and including the last day of the Collection Period,
the amount of interest that accrues on the amount of such Principal
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Prepayment from such Due Date to the date such payment was made, plus (if made)
any payment by the Mortgagor of interest that would have accrued to the next
succeeding Due Date (net of the Master Servicing Fee, the Primary Servicing
Fees, the Excess Servicing Fees, the Special Servicing Fee, the servicing fee
payable in connection with the Pari Passu Loan (in the case of the Pari Passu
Loan), and the Trustee Fee), to the extent collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any Distribution
Date, a shortfall in the collection of a full month's interest on any Mortgage
Loan, by reason of a full or partial Principal Prepayment (including payment of
a Balloon Payment other than in connection with the foreclosure or liquidation
of a Mortgage Loan) made during any Collection Period prior to the Due Date for
such Mortgage Loan in such Collection Period (including any shortfall resulting
from such a payment during the grace period relating to such Due Date). The
amount of any Prepayment Interest Shortfall shall equal the excess of (A) the
aggregate amount of interest which would have accrued on the Scheduled Principal
Balance of such Mortgage Loan if the Mortgage Loan had paid on its Due Date and
such Principal Prepayment or Balloon Payment had not been made (net of the
Master Servicing Fee, the Primary Servicing Fees, the Excess Servicing Fees, the
Special Servicing Fee, the servicing fee payable in connection with the Pari
Passu Loan (in the case of the Pari Passu Loan) and the Trustee Fee) over (B)
the aggregate interest that did so accrue through the date such payment was made
(net of such fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan or B Note
for any Distribution Date, the prepayment premiums, yield maintenance payments
or percentage premiums, if any, received during the related Collection Period in
connection with Principal Prepayments on such Mortgage Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged Property
securing the Repurchased Loan or Cross-Collateralized Loan, as applicable, that
is encumbered by a first mortgage lien.
"PRIMARY SERVICERS" means Principal Capital Management, LLC and JHREF
and each of their respective permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means, with respect to each Primary
Servicer, the agreement between such Primary Servicer and the Master Servicer,
dated as of November 1, 2001, a form of which is attached hereto as Exhibit G,
under which such Primary Servicer services the Mortgage Loans set forth on the
schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to the
applicable Primary Servicer (or the Master Servicer, as applicable) based on the
per annum rate specified on the Mortgage Loan Schedule, as more specifically
described, in the case of the Primary
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Servicers, in the applicable Primary Servicing Agreement (determined in the same
manner (other than the rate of accrual) as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month).
"PRINCIPAL" has the meaning assigned in the Preliminary Statement
hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan, B Note or
REO Mortgage Loan, for purposes of performing calculations with respect to any
Distribution Date, the principal balance of such Mortgage Loan, B Note or the
related REO Mortgage Loan outstanding as of the Cut-Off Date after taking into
account all principal and interest payments made or due prior to the Cut-Off
Date (assuming, for any Mortgage Loan or B Note with a Due Date in November,
2001 that is not November 1, 2001, that principal and interest payments for such
month were paid on November 1, 2001), reduced (to not less than zero) by (i) any
payments or other collections of amounts allocable to principal on such Mortgage
Loan, B Note or related REO Mortgage Loan that have been collected or received
during any preceding Collection Period, other than any Scheduled Payments due in
any subsequent Collection Period, and (ii) the principal portion of any Realized
Loss incurred in respect of such Mortgage Loan or related REO Mortgage Loan
during any related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M and Class N Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution Date, the
sum of the following amounts: (i) the principal portion of all Scheduled
Payments (other than the principal portion of Balloon Payments) and any Assumed
Scheduled Payments, in each case, to the extent received or advanced, as the
case may be, in respect of the Mortgage Loans and any REO Mortgage Loans (but
not in respect of any B Note or its successor REO Mortgage Loan) for their
respective Due Dates occurring during the related Collection Period; (ii) all
payments (including Principal Prepayments and the principal portion of Balloon
Payments but not in respect of any B Note or its respective successor REO
Mortgage Loan) and any other collections (including Liquidation Proceeds (other
than the portion thereof, if any, constituting Excess Liquidation Proceeds),
Condemnation Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income)
received on or in respect of the Mortgage Loans during the related Collection
Period and that were identified and applied by the Master Servicer as recoveries
of principal thereof.
"PRINCIPAL LOANS" means, collectively those Mortgage Loans sold to the
Depositor pursuant to Mortgage Loan Purchase Agreement III and shown on Schedule
III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary payment or
collection of principal on a Mortgage Loan or B Note which is received or
recovered in advance of its scheduled Due Date and applied to reduce the
Principal Balance of the Mortgage Loan or B Note in advance of its scheduled Due
Date, including, without limitation, all proceeds, to the extent allocable to
principal, received from the payment of cash in connection with a substitution
shortfall pursuant to Section 2.3; provided, that the pledge by a Mortgagor of
Defeasance Collateral with respect to a Defeasance Loan shall not be deemed to
be a Principal Prepayment.
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"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement Memorandum
dated October 31, 2001, pursuant to which the Class X-1, Class X-2, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary Statement
hereto.
"PURCHASE PRICE" means, with respect to the purchase by the Seller or
liquidation by the Special Servicer of (i) a Mortgage Loan or an REO Mortgage
Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage Loan
pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36 under
the circumstances described therein, a price equal to the sum of (A) 100% of the
unpaid Principal Balance of such Mortgage Loan (or deemed Principal Balance, in
the case of an REO Mortgage Loan), plus (B) accrued but unpaid interest thereon
calculated at the Mortgage Rate to, but not including, the Due Date in the
Collection Period in which such purchase or liquidation occurs, plus (C) the
amount of any expenses related to such Mortgage Loan and/or (if applicable) its
related B Note or the related REO Property (including any Servicing Advances and
Advance Interest (which have not been paid by the Mortgagor or out of Late Fees
or default interest paid by the related Mortgagor on the related Mortgage Loan
and/or (if applicable) its related B Note) related to such Mortgage Loan and/or
(if applicable) its related B Note and all Special Servicing Fees and
Liquidation Fees paid with respect to the Mortgage Loan and/or (if applicable)
its related B Note) that are reimbursable or payable to the Master Servicer, the
Special Servicer, the Paying Agent, the Trustee, the Fiscal Agent, the 2001-TOP3
Master Servicer or the 2001-TOP3 Special Servicer, plus (D) if such Mortgage
Loan or REO Mortgage Loan is being repurchased or substituted for by a Seller
pursuant to the related Mortgage Loan Purchase Agreement, all expenses
reasonably incurred or to be incurred by the Primary Servicer, the Master
Servicer, the Special Servicer, the Depositor, the Paying Agent or the Trustee
in respect of the Material Breach or Material Document Defect giving rise to the
repurchase or substitution obligation (and that are not otherwise included in
(C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the Master
Servicer in connection with: (i) the repurchase of a Mortgage Loan or an REO
Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the purchase of the
Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a Person
qualified to act as successor Master Servicer hereunder pursuant to Section
8.22(b) (including the requirement set forth in Section 8.22(b) that Rating
Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
"QUALIFIED INSTITUTIONAL BUYER" means a qualified institutional buyer
qualifying pursuant to Rule 000X.
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"XXXXXXXXX XXXXXXX" xxxxx, (x) with respect to any Mortgage Loan or B
Note, an insurance company duly qualified as such under the laws of the state in
which the related Mortgaged Property is located, duly authorized and licensed in
such state to transact the applicable insurance business and to write the
insurance, but in no event rated lower than "A" by S&P, or if not so rated by
S&P, then S&P has issued a Rating Agency Confirmation, and "A2" by Moody's if
rated by Moody's or if not rated by Moody's, then Moody's has issued a Rating
Agency Confirmation, and (ii) with respect to the Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond an insurance company that has a claim
paying ability no lower than "A" by S&P if rated by S&P, or if not rated by S&P,
then S&P has issued a Rating Agency Confirmation, and "A2" by Moody's if rated
by Moody's or if not rated by Moody's, then Moody's has issued a Rating Agency
Confirmation, or (iii) in either case, a company not satisfying clause (i) or
(ii) but with respect to which Rating Agency Confirmation is obtained.
"Qualified Insurer" shall also mean any entity that satisfies all of the
criteria, other than the ratings criteria, set forth in one of the foregoing
clauses and whose obligations under the related insurance policy are guaranteed
or backed by an entity that satisfies the ratings criteria set forth in such
clause (construed as if such entity were an insurance company referred to
therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a Mortgage
Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on the date
of substitution, (i) has an outstanding principal balance, after deduction of
the principal portion of the Scheduled Payment due in the month of substitution,
not in excess of the Principal Balance of the Deleted Mortgage Loan; provided,
however, that, to the extent that the principal balance of such Mortgage Loan is
less than the Principal Balance of the Deleted Mortgage Loan, then such
differential in principal amount, together with interest thereon at the Mortgage
Rate on the related Mortgage Loan from the date as to which interest was last
paid through the last day of the month in which such substitution occurs, shall
be paid by the party effecting such substitution to the Master Servicer for
deposit into the Certificate Account, and shall be treated as a Principal
Prepayment hereunder; (ii) is accruing interest at a rate of interest at least
equal to that of the Deleted Mortgage Loan; (iii) has a remaining term to stated
maturity not greater than, and not more than two years less than, that of the
Deleted Mortgage Loan; (iv) has an original Loan-to-Value Ratio not higher than
that of the Deleted Mortgage Loan and a current Loan-to-Value Ratio (equal to
the outstanding principal balance on the date of substitution divided by its
current Appraised Value) not higher than the current Loan-to-Value Ratio of the
Deleted Mortgage Loan and has a current Debt Service Coverage Ratio equal to or
greater than the current Debt Service Coverage Ratio of the Deleted Mortgage
Loan; (v) will comply with all of the representations and warranties relating to
Mortgage Loans set forth herein, as of the date of substitution; (vi) has a
Phase I Environmental Report relating to the related Mortgaged Property in its
Mortgage Files and such Phase I Environmental Report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; (vii)
has an engineering report relating to the related Mortgaged Property in its
Mortgage Files and such engineering report does not, in the good faith
reasonable judgment of the Special Servicer, consistent with the Servicing
Standard raise material issues that have not been adequately addressed; and
(viii) as to which the Trustee and the Paying Agent have received an Opinion of
Counsel, at the related Seller's expense, that such Mortgage Loan is a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the later Rated Final Distribution Date, and provided,
further, that no such Mortgage Loan shall be
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substituted for a Deleted Mortgage Loan unless Rating Agency Confirmation is
obtained, and provided, further that no such Mortgage Loan shall be substituted
for a Deleted Mortgage Loan unless the Operating Adviser shall have approved of
such substitution (provided, however, that such approval of the Operating
Adviser may not be unreasonably withheld). In the event that either one mortgage
loan is substituted for more than one Deleted Mortgage Loan or more than one
mortgage loan is substituted for one or more Deleted Mortgage Loans, then (A)
the Principal Balance referred to in clause (i) above shall be determined on the
basis of aggregate Principal Balances and (B) the rates referred to in clause
(ii) above and the remaining term to stated maturity referred to in clause (iii)
above shall be determined on a weighted average basis. Whenever a Qualifying
Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan pursuant to
this Agreement, the party effecting such substitution shall certify that such
Mortgage Loan meets all of the requirements of this definition and shall send
such certification to the Paying Agent, which shall deliver a copy of such
certification to the Special Servicer, the Trustee and the Operating Adviser
promptly, and in any event within five Business Days following the Paying
Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to the Class A-1 and
Class A-2 Certificates, the Distribution Date in November 2016, and with respect
to the other Classes of Certificates, the Distribution Date in November 2033.
"RATING AGENCIES" means S&P and Xxxxx'x.
"RATING AGENCY TRIGGER EVENT" means (i) a reduction in the Swap
Counterparty's short-term unsecured debt rating (or its equivalent) below "P-1"
(or any successor rating thereto) by Moody's (or any successor thereto), (ii) in
the event that the Swap Counterparty's short-term unsecured debt rating (or its
equivalent) is "P-1" (or any successor rating thereto) by Moody's (or any
successor thereto), the placement of the Swap Counterparty on credit watch by
Moody's for possible downgrade, (iii) a reduction in the Swap Counterparty's
long-term unsecured debt rating (or its equivalent) below "Aa3" (or any
successor rating thereto) by Moody's (or any successor thereto) or (iv) in the
event that the Swap Counterparty's long-term unsecured debt rating (or its
equivalent) is "Aa3" (or any successor rating thereto) by Moody's (or any
successor thereto), the placement of the Swap Counterparty on credit watch by
Moody's for possible downgrade.
"RATING AGENCY CONFIRMATION" means, with respect to any matter,
confirmation in writing by each Rating Agency (or such Rating Agency as is
specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage Loan, (i)
in the case of a Liquidation Realized Loss, the portion of any Liquidation
Realized Loss that exceeds the Realized Principal Loss on the related Mortgage
Loan, (ii) in the case of a Bankruptcy Loss, the portion of such Realized Loss
attributable to accrued interest on the related Mortgage Loan, (iii) in the case
of an Expense Loss, an Expense Loss resulting in any period from the payment of
the Special Servicing Fee and any Expense Losses set forth in the last sentence
of the definition
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of "Realized Principal Loss" or (iv) in the case of a Modification Loss, a
Modification Loss described in clause (iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a Modification Loss,
a Bankruptcy Loss or an Expense Loss with respect to a Mortgage Loan. Realized
Losses on a Mortgage Loan are allocated first to the Principal Balance of, and
then to interest on such Mortgage Loan.
"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage Loan,
(i) in the case of a Liquidation Realized Loss, the amount of such Realized
Loss, to the extent that it does not exceed the Principal Balance of the
Mortgage Loan (or deemed Principal Balance, in the case of REO Property), (ii)
in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, and (iv) in the case of
an Expense Loss, the portion thereof not treated as a Realized Interest Loss.
Notwithstanding clause (iv) of the preceding sentence, to the extent that
Expense Losses (exclusive of Expense Losses resulting from payment of the
Special Servicing Fee) exceed amounts with respect to the Mortgage Loans that
were identified as allocable to principal, such excess shall be treated as a
Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class of
Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts recovered
with respect to a Mortgage Loan, B Note or REO Property following the period in
which a Final Recovery Determination occurs plus other amounts defined as
"Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification substantially
in the form set forth in Exhibit F hereto certifying that a beneficial owner of
an interest in a Regulation S Temporary Global Certificate is not a U.S. Person
(as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S Permanent
Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single permanent
global Certificate, in definitive, fully registered form without interest
coupons received in exchange for a Regulation S Temporary Global Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold outside of the United States in reliance
on Regulation S, a single temporary global Certificate, in definitive, fully
registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced Mortgage
Loan with respect to which (i) three consecutive Scheduled Payments have been
made (in the case of any such Mortgage Loan or B Note that was modified, based
on the modified terms), or a
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complete defeasance shall have occurred, (ii) no other Servicing Transfer Event
has occurred and is continuing (or with respect to determining whether a
Required Appraisal Loan is a Rehabilitated Mortgage Loan for applying Appraisal
Reductions, no other Appraisal Event has occurred and is continuing) and (iii)
the Trust has been reimbursed for all costs incurred as a result of the
occurrence of a Servicing Transfer Event or such amounts have been forgiven. An
A Note shall not constitute a Rehabilitated Mortgage Loan unless its related B
Note would constitute a Rehabilitated Mortgage Loan. A B Note shall not
constitute a Rehabilitated Mortgage Loan unless its related A Note also would
constitute a Rehabilitated Mortgage Loan.
"RELEASE DATE" means the date 40 days after the later of (i) the
commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within the
meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of the
Mortgage Loans (other than any Excess Interest payable thereon), such amounts as
shall from time to time be held in the Certificate Account and the Distribution
Account (other than the portion thereof constituting the Excess Interest
Sub-account), the Insurance Policies (other than the interests of the holder of
any B Note therein) and any REO Properties (other than the interests of the
holder of any B Note therein), for which a REMIC election has been made pursuant
to Section 12.1(a) hereof. Excess Interest on the Mortgage Loans and the Excess
Interest Sub-account shall constitute assets of the Trust but shall not be a
part of any REMIC Pool formed hereunder. The 2001-TOP3 Mortgage Loan and any
amounts payable thereon shall not constitute an asset of the Trust or any REMIC
Pool formed hereunder. No B Note or any amounts payable thereon shall constitute
an asset of the Trust or any REMIC Pool formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular Interests
and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any Distribution
Date, as to any REMIC I Regular Interest, a rate per annum equal (a) with
respect to any Mortgage Loan that accrues interest on the basis of a 360-day
year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the Mortgage
Rate thereof (without taking into account any increase therein after the
Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above, and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan, provided that for purposes of this clause (b), (i) the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Account and (ii) the REMIC I Net Mortgage Rate for
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the loan accrual period relating to the Due Date in March shall be determined
taking into account the addition of any amounts withdrawn from the Interest
Reserve Account.
"REMIC I REGULAR INTERESTS" means, collectively, the uncertificated
interests designated as "regular interests" in REMIC I, which shall consist of,
with respect to each Mortgage Loan, an interest having an initial Certificate
Balance equal to the Cut-Off Date Scheduled Principal Balance of such Mortgage
Loan, and which has a Pass-Through Rate equal to the REMIC I Net Mortgage Rate
of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of the REMIC
I Regular Interests for which a REMIC election has been made pursuant to Section
12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-1 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $9,093,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having an initial Certificate Balance equal to $50,907,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class A-3 Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class B Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class C Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance
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equal to the Aggregate Certificate Balance of the Class D Certificates, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class E Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class F Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class G Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class H Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class J Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class K Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST L" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class L Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Aggregate Certificate Balance
of the Class M Certificates, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated interest
designated as a "regular interest" in REMIC II, which shall consist of an
interest having a Certificate Balance equal to the Certificate Balance of the
Class N Certificates, and which has a Pass-Through Rate equal to the Weighted
Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II Regular
Interest A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest A-3, REMIC II Regular Interest B, REMIC II Regular
Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E, REMIC II
Regular Interest F, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N.
"REMIC III" means the segregated pool of assets consisting of the REMIC
II Regular Interests for which a REMIC election has been made pursuant to
Section 12.1(a) hereof.
"REMIC III CERTIFICATES" means the Certificates (other than the Class
A-2 Certificates, the Class R-I Certificate and the Class R-II Certificate).
"REMIC III REGULAR INTERESTS" means, collectively, the Class A-1
Certificates, the Class A-2 Regular Interest, the Class A-3 Certificates, Class
X Certificates, Class B Certificates, Class C Certificates, Class D
Certificates, Class E Certificates, Class F Certificates, Class G Certificates,
Class H Certificates, Class J Certificates, Class K Certificates, Class L
Certificates, Class M Certificates and the Class N REMIC Interest. References to
REMIC III Certificates will, with respect to the Class N Certificates, be
considered to refer to the Class N REMIC Interest that is a "regular interest"
in REMIC III, where appropriate.
"REMIC POOL" means each of the three segregated pools of assets
designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and final, temporary and proposed regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to time and
taking account, as appropriate, of any proposed legislation or regulations
which, as proposed, would have an effective date prior to enactment or
promulgation thereof.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of insurance
generally insuring against loss of income or rent resulting from hazards or acts
of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO Property,
income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section 9.14(a)
hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or the
Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had not been
security for an A/B Mortgage Loan for any Collection Period, all income received
in connection with such REO Property during such period less any operating
expenses, utilities, real estate taxes, management fees, insurance premiums,
expenses for maintenance and repairs and any
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other capital expenses directly related to such REO Property paid during such
period or, with respect to an REO Property that had been security for an A/B
Mortgage Loan, the portion of the amounts described above received with respect
to such REO Property and allocable to the related A Note pursuant to the related
Intercreditor Agreement. With respect to the Pari Passu Loan (if the 2001-TOP3
Special Servicer has foreclosed upon the Mortgaged Property secured by the Pari
Passu Mortgage), the REO Income shall comprise only such portion of the
foregoing that is payable to the holder of the Pari Passu Loan.
"REO MORTGAGE LOAN" means a Mortgage Loan or B Note as to which the
related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property (or an interest therein, if
the Mortgaged Property securing the Pari Passu Loan and the 2001-TOP3 Mortgage
Loan or the Mortgaged Property securing an A/B Mortgage Loan has been acquired
by the Trust) acquired by the Trust through foreclosure, deed-in-lieu of
foreclosure, abandonment or reclamation from bankruptcy in connection with a
Defaulted Mortgage Loan or otherwise treated as foreclosure property under the
REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in Section 2.3(a) hereof.
"REQUEST FOR RELEASE" means a request for release of certain documents
relating to the Mortgage Loans, a form of which is attached hereto as Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan as to which an
Appraisal Event has occurred. A Mortgage Loan will cease to be a Required
Appraisal Loan at such time as it is a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by the
Paying Agent in accordance with the provisions of Section 5.3, which shall be an
Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the Class R-I
Certificates, with respect to REMIC II, the Class R-II Certificates, and with
respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the initial
Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed Securities
Trust Services Group, or with respect to the Paying Agent, any officer assigned
to the Corporate Trust Services Group, each with specific responsibilities for
the matters contemplated by this Agreement and when used with respect to any
successor Trustee, Fiscal Agent or Paying Agent, any Vice President, Assistant
Vice President, corporate trust officer or any assistant corporate trust officer
or persons performing similar roles on behalf of the Trustee, Fiscal Agent or
Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by
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the Master Servicer and the Special Servicer (with respect to Specially Serviced
Mortgage Loans and REO Properties)): (i) a Comparative Financial Status Report;
(ii) without duplication with Section 8.14, an NOI Adjustment Worksheet; (iii)
without duplication with Section 8.14, an Operating Statement Analysis Report,
(iv) subject to Section 8.11(h), a Servicer Watch List, (v) a Property File and
(vi) without duplication with Section 8.14, a Financial File.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class N, Class M,
Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D, Class C,
Class B and finally to the Class X and Class A Certificates (including the Class
A-2 Certificates or the Class A-2 Regular Interest, as applicable), on a pro
rata basis, as described herein.
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any Class of
Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc. or its successor in interest.
"SCHEDULED PAYMENT" means each scheduled payment of principal of,
and/or interest on, a Mortgage Loan or B Note required to be paid on its Due
Date by the Mortgagor in accordance with the terms of the related Mortgage Note
or B Note (excluding all amounts of principal and interest which were due on or
before the Cut-Off Date, whenever received, and taking account of any
modifications thereof and the effects of any Debt Service Reduction Amounts and
Deficient Valuation Amounts). Notwithstanding the foregoing, the amount of the
Scheduled Payment for any A Note or B Note shall be calculated without regard to
the related Intercreditor Agreement.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
B Note or REO Mortgage Loan, for purposes of performing calculations with
respect to any Distribution Date, the Principal Balance thereof minus the
aggregate amount of any P&I Advances of principal previously made with respect
to such Mortgage Loan, B Note or REO Mortgage Loan.
"SELLER" means JHREF, Principal, Xxxxx Fargo, BSF or MSDWMC as the case
may be.
"SENIOR CERTIFICATES" means the Class A and Class X Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS AND
OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, in accordance with Section 8.2,
Section 9.2 and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or insurance
policy under which the insurer agrees to indemnify the Master Servicer, the
Special Servicer, the
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Trustee, the Fiscal Agent or the Paying Agent, as the case may be, (subject to
standard exclusions) for all losses (less any deductible) sustained as a result
of any theft, embezzlement, fraud or other dishonest act on the part of the
Master Servicer's, the Special Servicer's, the Trustee's, the Fiscal Agent's or
the Paying Agent's, as the case may be, directors, officers or employees and is
maintained in accordance with Section 8.2, Section 9.2 and Section 7.17,
respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage documents listed
in the definition of Mortgage File relating to a Mortgage Loan and shall also
include, to the extent required to be (and actually) delivered to the applicable
Seller pursuant to the applicable Mortgage Loan documents, copies of the
following items: the Mortgage Note, any Mortgage, the Assignment of Leases and
the Assignment of Mortgage, any guaranty/indemnity agreement, any loan
agreement, any insurance policies or certificates (as applicable), any property
inspection reports, any financial statements on the property, any escrow
analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master Servicer,
the Trustee or the Fiscal Agent, as the case may be, designated as a Servicing
Advance pursuant to this Agreement and any other costs and expenses incurred by
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
the case may be, to protect and preserve the security for such Mortgage Loan
and/or (if applicable) the related B Note.
"SERVICING OFFICER" means, any officer or employee of the Master
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and any B Note whose name and specimen signature appear on a
list of servicing officers or employees furnished to the Trustee by the Master
Servicer and signed by an officer of the Master Servicer, as such list may from
time to time be amended.
"SERVICING STANDARD" means, with respect to the Master Servicer or the
Special Servicer, as the case may be, to service and administer the Mortgage
Loans (and any B Note) that it is obligated to service and administer pursuant
to this Agreement on behalf of the Trustee and in the best interests of and for
the benefit of the Certificateholders (and in the case of any B Note, the
related holder of the B Note) (as determined by the Master Servicer or the
Special Servicer, as the case may be, in its good faith and reasonable
judgment), in accordance with applicable law, the terms of this Agreement and
the terms of the respective Mortgage Loans and any B Note (and, in the case of
any A Note and B Note, the related Intercreditor Agreement) and, to the extent
consistent with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal and usual in
its general mortgage servicing and REO property management activities on behalf
of third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder;
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and any B Note or, if a Mortgage
Loan or any B Note
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comes into and continues in default and if, in the good faith and reasonable
judgment of the Special Servicer, no satisfactory arrangements can be made for
the collection of the delinquent payments, the maximization of the recovery on
such Mortgage Loan to the Certificateholders (as a collective whole) (or in the
case of any A/B Mortgage Loan and its related B Note, the maximization of
recovery on such A/B Mortgage Loan to the Certificateholders and the holder of
the related B Note, all taken as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related REMIC I Net Mortgage Rate,
in the case of the Mortgage Loans (other than any A Note) or the weighted
average of the mortgage rates on the related A Note and B Note, in the case of
any A/B Mortgage Loan); and without regard to: (I) any other relationship that
the Master Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof may have with the related Mortgagor; (II) the ownership of any
Certificate by the Master Servicer or the Special Servicer, as the case may be,
or any Affiliate thereof; (III) the Master Servicer's obligation to make
Advances; and (IV) the right of the Master Servicer (or any Affiliate thereof)
or the Special Servicer (or any Affiliate thereof), as the case may be, to
receive reimbursement of costs, or the sufficiency of any compensation payable
to it, hereunder or with respect to any particular transaction.
"SERVICING TRANSFER EVENT" means the occurrence of any of the following
events: (i) any Mortgage Loan or B Note as to which a Balloon Payment is past
due, and the Master Servicer has determined, in its good faith reasonable
judgment in accordance with the Servicing Standard, that payment is unlikely to
be made on or before the 60th day succeeding the date the Balloon Payment was
due, or any other payment is more than 60 days past due or has not been made on
or before the second Due Date following the Due Date such payment was due; (ii)
any Mortgage Loan or B Note as to which, to the Master Servicer's knowledge, the
Mortgagor has consented to the appointment of a receiver or conservator in any
insolvency or similar proceeding of, or relating to, such Mortgagor or to all or
substantially all of its property, or the Mortgagor has become the subject of a
decree or order issued under a bankruptcy, insolvency or similar law and such
decree or order shall have remained undischarged or unstayed for a period of 30
days; (iii) any Mortgage Loan or B Note as to which the Master Servicer shall
have received notice of the foreclosure or proposed foreclosure of any other
lien on the Mortgaged Property; (iv) any Mortgage Loan or B Note as to which the
Master Servicer has knowledge of a default (other than a failure by the related
Mortgagor to pay principal or interest) which in the good faith reasonable
judgment of the Master Servicer materially and adversely affects the interests
of the Certificateholders or the holder of any related B Note and which has
occurred and remains unremedied for the applicable grace period specified in
such Mortgage Loan (or, if no grace period is specified, 60 days); (v) any
Mortgage Loan or B Note as to which the Mortgagor admits in writing its
inability to pay its debts generally as they become due, files a petition to
take advantage of any applicable insolvency or reorganization statute, makes an
assignment for the benefit of its creditors or voluntarily suspends payment of
its obligations; (vi) any Mortgage Loan or B Note as to which, in the good faith
reasonable judgment of the Master Servicer, (a) (other than with respect to any
A/B Mortgage Loan) a payment default is imminent or is likely to occur within 60
days, or (b) any other default is imminent or is likely to occur within 60 days
and such default, in the judgment of the Master Servicer, is reasonably likely
to materially and adversely affect the interests of the Certificateholders or
the holder of any related B Note (as the case may be); and (vii) with respect to
any A/B Mortgage Loan, if the holder of the B Note chooses not to cure a
monetary default that is permitted to be cured under
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the related Intercreditor Agreement, the Business Day following the expiration
of the Cure Period (as defined below) of the holder of the B Note that commences
one month after such monetary default; provided, however, that (1) if the holder
of the B Note exercised its right to cure a monetary default and a monetary
default occurs in the following month, servicing of such Mortgage Loan shall be
transferred to the Special Servicer on the Business Day following the expiration
of the Cure Period (as defined in the Intercreditor Agreement) of the holder of
the B Note if the holder of the B Note does not cure the current monetary
default or (2) if the holder of the B Note has exercised its right to cure three
consecutive monetary defaults and a monetary default occurs in the following
month, servicing of such Mortgage Loan shall be transferred to the Special
Servicer at the expiration of the Mortgagor's grace period for the current
monetary default. If a Servicing Transfer Event occurs with respect to an A
Note, it shall be deemed to have occurred also with respect to its related B
Note. If a Servicing Transfer Event occurs with respect to a B Note, it shall be
deemed to have occurred also with respect to its related A Note. However, if a
Servicing Transfer Event has not occurred with respect to an A Note solely due
to the holder of the related B Note exercising its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such B Note. With respect to the A/B Mortgage Loan, "Cure Period"
means the five Business Days after the expiration of the applicable borrower's
grace period.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an individual, whose
organizational documents provide substantially to the effect that it is formed
or organized solely for the purpose of owning and collecting payments from
Defeasance Collateral for the benefit of the Trust and which (i) does not engage
in any business unrelated thereto and the financing thereof; (ii) does not have
any assets other than those related to its interest in Defeasance Collateral;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other Person;
(iv) conducts business in its own name and uses separate stationery, invoices
and checks; (v) does not guarantee or assume the debts or obligations of any
other Person; (vi) does not commingle its assets or funds with those of any
other Person; (vii) transacts business with affiliates on an arm's length basis
pursuant to written agreements; and (viii) holds itself out as being a legal
entity, separate and apart from any other Person, and otherwise complies with
the single-purpose requirements established by the Rating Agencies. The entity's
organizational documents also provide that any dissolution and winding up or
insolvency filing for such entity requires the unanimous consent of all partners
or members, as applicable, and that such documents may not be amended with
respect to the Single-Purpose Entity requirements.
"SPECIAL SERVICER" means GMAC Commercial Mortgage Corporation, or any
successor Special Servicer as herein provided.
"SPECIAL SERVICER COMPENSATION" means, with respect to any applicable
period, the sum of the Special Servicing Fees, the Liquidation Fees and Work-Out
Fees and any other amounts to be paid to the Special Servicer pursuant to the
terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day preceding
each Determination Date.
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"SPECIAL SERVICING FEE" means, for each calendar month, as to each
Mortgage Loan (other than the Pari Passu Loan) or B Note that is a Specially
Serviced Mortgage Loan (including REO Mortgage Loans), the fraction or portion
of the Special Servicing Fee Rate applicable to such month (determined using the
same interest accrual methodology that is applied with respect to the Mortgage
Rate for such Mortgage Loan or B Note for such month) multiplied by the
Scheduled Principal Balance of such Specially Serviced Mortgage Loan immediately
before the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of the
Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than the Pari Passu Loan) or B Note with
respect to which the Master Servicer has notified the Special Servicer and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan or B Note as reasonably
requested by the Special Servicer to enable it to assume its duties with respect
to such Mortgage Loan or B Note. A Specially Serviced Mortgage Loan shall cease
to be a Specially Serviced Mortgage Loan from and after the date on which the
Special Servicer notifies the Master Servicer, the Paying Agent and the Trustee,
in accordance with Section 8.1(b), that such Mortgage Loan (and the related B
Note in the case of an A/B Mortgage Loan) has become a Rehabilitated Mortgage
Loan (and, in the case of an A Note (or B Note) that is or was a Specially
Serviced Mortgage Loan, its related B Note (or A Note) has also become a
Rehabilitated Mortgage Loan), with respect to such Servicing Transfer Event,
unless and until the Master Servicer notifies the Special Servicer, the Paying
Agent and the Trustee, in accordance with Section 8.1(b) that another Servicing
Transfer Event with respect to such Mortgage Loan or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty extended
coverage insurance policy in such amount and with such coverage as required by
this Agreement.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M
and Class N Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in Section 8.29(d) or
Section 9.31(d), as applicable.
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"SWAP CONTRACT" means the interest rate Swap Contract, dated as of
November 8, 2001, with the Swap Counterparty, which contract will be transferred
by the Depositor to the Trustee, in trust for the Trust Fund on the Closing
Date.
"SWAP COUNTERPARTY" means Xxxxx Fargo Bank, National Association, a
national banking association, acting in such capacity or its successor in
interest.
"SWAP DEFAULT" means any failure on the part of the Swap Counterparty
to (i) make a required payment under the Swap Contract or (ii) either post
acceptable collateral or find an acceptable replacement Swap Counterparty after
a Rating Agency Trigger Event as required by the Schedule to the related ISDA
Master Agreement.
"TAX MATTERS PERSON" means the person designated as the "tax matters
person" of each REMIC Pool pursuant to Treasury Regulations Section 1.860F-4(d)
and Temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in Section 10.1(b)
herein.
"TITLE INSURANCE POLICY" means a title insurance policy maintained with
respect to a Mortgage Loan issued on the date of origination of the related
Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement, the assets
which consist of all the assets of REMIC I (including the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account, the
Distribution Account, the Insurance Policies, any REO Properties and other items
referred to in Section 2.1(a) hereof), REMIC II and REMIC III; with respect to
the Class A-2 Certificates, the Swap Contract, the Class A-2 Regular Interest
and funds or assets from time to time on deposit in the Floating Rate Account;
and the Excess Interest Sub-account and any Excess Interest on the Mortgage
Loans. The Trust shall not include the 2001-TOP3 Mortgage Loan, any B Note, any
interest of the holders of a B Note or any A/B Loan Custodial Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee, or its
successor-in-interest, or if any successor trustee, or any co-trustee shall be
appointed as herein provided, then "Trustee" shall also mean such successor
trustee (subject to Section 7.7 hereof) and such co-trustee (subject to Section
7.9 hereof), as the case may be.
"TRUSTEE FEE" means for each calendar month, as to each Mortgage Loan
and B Note (including REO Mortgage Loans and Defeasance Loans), the portion of
the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology (other
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than the rate of accrual) that is applied with respect to the Mortgage Rate for
such Mortgage Loan or B Note for such month) multiplied by the Scheduled
Principal Balance of each such Mortgage Loan or B Note immediately before the
Due Date occurring in such month, provided that a portion of the Trustee Fee
agreed upon between the Trustee and the Paying Agent shall be applied to pay the
Paying Agent Fee.
"TRUSTEE FEE RATE" means 0.0027% per annum (which includes the Paying
Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in the
definition of Mortgage File hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related B Note) and any additional documents required
to be added to the Mortgage File pursuant to this Agreement; provided that
whenever the term "Trustee Mortgage File" is used to refer to documents actually
received by the Trustee or a Custodian on its behalf, such terms shall not be
deemed to include such documents required to be included therein unless they are
actually so received.
"2001-TOP3 DEPOSITOR" means the "depositor" under the 2001-TOP3 Pooling
and Servicing Agreement, which as of the date hereof is Xxxxxx Xxxxxxx Xxxx
Xxxxxx Capital I Inc.
"2001-TOP3 FISCAL AGENT" means the "fiscal agent" under the 2001-TOP3
Pooling and Servicing Agreement, which as of the date hereof is ABN AMRO Bank
N.V.
"2001-TOP3 MASTER SERVICER" means the "master servicer" under the
2001-TOP3 Pooling and Servicing Agreement, which as of the date hereof is Xxxxx
Fargo Bank, National Association.
"2001-TOP3 MORTGAGE LOAN" means the mortgage loan secured by the Pari
Passu Mortgage on a pari passu basis with the Pari Passu Loan. The 2001-TOP3
Mortgage Loan is not a Mortgage Loan. The 2001-TOP3 Mortgage Loan is included in
a trust fund created in connection with the issuance of the 2001-TOP3
Depositor's Commercial Mortgage Pass-Through Certificates, Series 2001-TOP3.
"2001-TOP3 PAYING AGENT" means the "paying agent" under the 2001-TOP3
Pooling and Servicing Agreement, which as of the date hereof is Xxxxx Fargo Bank
Minnesota, National Association.
"2001-TOP3 POOLING AND SERVICING AGREEMENT" means the pooling and
servicing agreement dated as of July 1, 2001 by and between the 2001-TOP3
Depositor, the 2001-TOP3 Fiscal Agent, the 2001-TOP3 Master Servicer, the
2001-TOP3 Special Servicer, the 2001-TOP3 Paying Agent and the 2001-TOP3
Trustee, pursuant to which the 2001-TOP3 Depositor issued its Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP3.
"2001-TOP3 SPECIAL SERVICER" means the "special servicer" under the
2001-TOP3 Pooling and Servicing Agreement, which as of the date hereof is GMAC
Commercial Mortgage Corporation.
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"2001-TOP3 TRUSTEE" means the "trustee" under the 2001-TOP3 Pooling and
Servicing Agreement, which as of the date hereof is LaSalle Bank National
Association.
"UNDERWRITER" means each of Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx &
Co. Incorporated, Xxxxxxx, Sachs & Co. and Xxxxx Fargo Brokerage Services, LLC
or its successors in interest.
"UNITED STATES 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 or any state thereof or the District of
Columbia, (iii) any estate of which an executor or administrator is a United
States Person (other than an estate governed by foreign law and of which at
least one executor or administrator is a non-United States Person who has sole
or shared investment discretion with respect to its assets), (iv) any trust of
which any trustee is a United States Person (other than a trust of which at
least one trustee is a non-United States Person and has sole or shared
investment discretion with respect to its assets), (v) any agency or branch of a
foreign entity located in the United States, (vi) any non-discretionary 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 Person, (vii) any
discretionary 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 such an account held for the benefit or account
of a non-United States Person), (viii) any partnership or corporation organized
or incorporated under the laws of a foreign jurisdiction and formed by a United
States Person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(A) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that the
term "United States Person" shall not include (A) a branch or agency of a United
States Person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the banking
or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, affiliates and pension plans.
"UNITED STATES TAX PERSON" means any of (i) a citizen or resident of
the United States, (ii) corporation or partnership organized in or under the
laws of the United States or any political subdivision thereof, (iii) an estate
the income of which is includible in gross income for United States tax
purposes, regardless of its source or (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of such
trust, and one or more United States Tax Persons has the authority to control
all substantial decisions of such trust.
"UNPAID INTEREST" means, on any Distribution Date with respect to any
Class of Interests (including the Class A-2 Regular Interest) or Certificates
(other than the Class A-2 Certificates and the Residual Certificates), the
portion of Distributable Certificate Interest for such Class remaining unpaid as
of the close of business on the preceding Distribution Date, plus one month's
interest thereon at the applicable Pass-Through Rate.
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"UNRESTRICTED SERVICER REPORTS" means the following reports in CMSA
format (as in effect on the date hereof or as such formats may be changed from
time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgaged Loans and
REO Properties)): (a) the following electronic files; (i) a Loan Set-Up File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an Historical
Liquidation Report, and (iv) an REO Status Report.
"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with respect to any
Distribution Date, the weighted average of the REMIC I Net Mortgage Rates for
the REMIC I Regular Interests, weighted on the basis of their respective
Certificate Balances as of the close of business on the preceding Distribution
Date.
"XXXXX FARGO" has the meaning assigned in the Preliminary Statement
hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown on
Schedule II hereto.
"WORK-OUT FEE" means a fee payable with respect to any Rehabilitated
Mortgage Loan (other than the Pari Passu Loan), equal to the product of (x) 1.0%
and (y) the amount of each collection of interest (other than default interest
and Excess Interest) and principal received (including any Condemnation Proceeds
received and applied as a collection of such interest and principal) on such
Mortgage Loan for so long as it remains a Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a) Calculations
required to be made by the Paying Agent pursuant to this Agreement with respect
to any Mortgage Loan or B Note shall be made based upon current information as
to the terms of the Mortgage Loans and B Note and reports of payments received
from the Master Servicer on such Mortgage Loans and B Note and payments to be
made to the Paying Agent as supplied to the Paying Agent by the Master Servicer.
The Paying Agent shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer and may conclusively rely upon
such information in making such calculations. If, however, a Responsible Officer
of the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable Mortgage Loan or
B Note documents (or the related Intercreditor Agreement), any amounts (other
than escrow and reserve deposits and reimbursements of lender advances and
expenses) received in respect of a Mortgage Loan or B Note as to which a default
has occurred and is continuing shall be applied first to overdue interest due
with respect to such Mortgage Loan or B Note at the Mortgage Rate thereof, next
to current interest due with respect to such Mortgage Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan or
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B Note to zero if such Mortgage Loan or B Note has been accelerated and in
respect of any scheduled payments of principal then due to the extent that such
Mortgage Loan or B Note has not yet been accelerated, next to any default
interest and other amounts due on such Mortgage Loan or B Note and finally to
Late Fees due with respect to such Mortgage Loan or B Note.
SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST. Accrued interest
on any Certificate (other than the Class A-2 Certificates) and on the Class A-2
Regular Interest shall be calculated based upon a 360-day year consisting of
twelve 30-day months and accrued interest on the Class A-2 Certificates shall be
calculated on the basis of the actual number of days elapsed in the related
Interest Accrual Period and a 360-day year. Pass-Through Rates shall be carried
out to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION(a) (a) Whenever the Agreement refers to a
Distribution Date and a "related" Collection Period, Interest Accrual Period,
Record Date, Due Date, Report Date, Monthly Certificateholders Report, Special
Servicer Remittance Date, Master Servicer Remittance Date or Determination Date,
such reference shall be to the Collection Period, Interest Accrual Period,
Record Date, Due Date, Report Date, Special Servicer Remittance Date, Master
Servicer Remittance Date or Determination Date, as applicable, immediately
preceding such Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 shall have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as applicable.
(c) The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this agreement as a whole
and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition ascribed to such
term shall be equally applicable to both the singular and plural forms of such
term and to masculine, feminine and neuter genders of such term.
(e) This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
SECTION 1.5 ARD LOANS. Notwithstanding any provision of this Agreement;
(a) For the ARD Loans, the Excess Interest accruing as a result of the
step-up in the Mortgage Rate upon failure of the related Mortgagor to pay the
principal on the Anticipated Repayment Date as specifically provided for in the
related Mortgage Note shall not be taken into account for purposes of the
definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
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(b) Excess Interest shall constitute an asset of the Trust but not an
asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer shall take any
enforcement action with respect to the payment of Excess Interest unless the
taking of such action is consistent with the Servicing Standard and all other
amounts due under such Mortgage Loan have been paid, and, in the good faith and
reasonable judgment of the Master Servicer and the Special Servicer, as the case
may be, the Liquidation Proceeds expected to be recovered in connection with
such enforcement action will cover the anticipated costs of such enforcement
action and, if applicable, any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on Excess
Interest.
(e) With respect to an ARD Loan after its Anticipated Repayment Date,
the Master Servicer or the Special Servicer, as the case may be, shall be
permitted, in its discretion, to waive in accordance with Section 8.18 and
Section 9.5 hereof, all or any accrued Excess Interest if, prior to the related
Maturity Date, the related Mortgagor has requested the right to prepay the
Mortgage Loan in full together with all payments required by the Mortgage Loan
in connection with such prepayment except for all or a portion of accrued Excess
Interest, provided that the Master Servicer's or the Special Servicer's
determination to waive the right to such accrued Excess Interest is in
accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case may be, will
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO A/B MORTGAGE LOANS
(a) For the avoidance of doubt, the parties acknowledge that the rights
and duties of each of the Master Servicer and the Special Servicer under Article
VIII and Article IX and the obligation of the Master Servicer to make Advances,
insofar as such rights, duties and obligations relate to any A/B Mortgage Loan
(including both the related A Note and the related B Note), shall terminate upon
the earliest to occur of the following with respect to such A/B Mortgage Loan:
(i) any repurchase of or substitution for the related A Note by the Seller of
such A/B Mortgage Loan pursuant to Section 2.3, (ii) any purchase of the related
A Note by the owner of the related B Note pursuant to the terms of the related
Intercreditor Agreement, and (iii) any payment in full of any and all amounts
due (or deemed due) under the related A Note (or its successor REO Mortgage
Loan) (including amounts to which the holder of such A Note is entitled under
the related Intercreditor Agreement); provided, however, that this statement
shall not limit (A) the duty of the Master Servicer or the Special Servicer to
deliver or make available the reports otherwise required of it hereunder with
respect to the Collection Period in which such event occurs or (B) the rights of
the Master Servicer or the Special Servicer that may otherwise accrue or arise
in connection with the performance of its duties hereunder with respect to such
A/B Mortgage Loan prior to the date on which such event occurs. There are no A/B
Mortgage Loans in the Trust.
(b) In connection with any purchase described in clause (ii) of
subsection (a) or an event described in clause (iii) of subsection (a), the
Trustee, the Master Servicer and the
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Special Servicer shall each tender to (in the case of a purchase under such
clause (ii)) the related purchaser (provided that the related purchaser shall
have paid the full amount of the applicable purchase price) or (in the case of
such clause (iii)) to the holder of the related B Note, upon delivery to them of
a receipt executed by such purchaser or holder, all portions of the Mortgage
File and other documents pertaining to such A/B Mortgage Loan possessed by it,
and each document that constitutes a part of the Mortgage File shall be endorsed
or assigned to the extent necessary or appropriate to such purchaser or holder
(or the designee of such purchaser or holder) in the same manner, and pursuant
to appropriate forms of assignment, substantially similar to the manner and
forms pursuant to which documents were previously assigned to the Trustee by the
related Seller, but in any event, without recourse, representation or warranty;
provided that such tender by the Trustee shall be conditioned upon its receipt
from the Master Servicer of a Request for Release. The Master Servicer shall,
and is also hereby authorized and empowered by the Trustee to, convey to such
purchaser or such holder any deposits then held in an Escrow Account relating to
the applicable A/B Mortgage Loan. If an A Note and a B Note under the applicable
Mortgage Loan are then REO Mortgage Loans, then the Special Servicer shall, and
is also hereby authorized and empowered by the Trustee to, convey to such
purchaser or such holder, in each case, to the extent not needed to pay or
reimburse the Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent in accordance with this Agreement, deposits then held in the REO Account
insofar as they relate to the related REO Property.
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does hereby assign
in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule, (ii)
the Depositor's rights under each Mortgage Loan Purchase Agreement that are
permitted to be assigned to the Trustee pursuant to Section 14 thereof, (iii)
the Initial Deposit, (iv) the Depositor's rights under the Pari Passu
Intercreditor Agreement and the 2001-TOP3 Pooling and Servicing Agreement with
respect to the Pari Passu Loan, and the Depositor's rights under the
Intercreditor Agreements, (v) with respect to the Class A-2 Certificates, the
Swap Contract, the Class A-2 Regular Interest and funds or assets from time to
time on deposit in the Floating Rate Account and (vi) all other assets included
or to be included in REMIC I for the benefit of REMIC II and REMIC III. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and due after the Cut-Off Date. The transfer of
the Mortgage Loans and the related rights and property accomplished hereby is
absolute and is intended by the parties to constitute a sale. In connection with
the initial sale of the Certificates by the Depositor, the purchase price to be
paid includes a portion attributable to interest accruing on the Certificates
from and after the Cut-Off Date. The transfer and assignment of the Pari Passu
Loan to the Trustee and the right to service such Mortgage Loan is subject to
the terms and conditions of the 2001-TOP3 Pooling and Servicing Agreement and
the Pari Passu Intercreditor Agreement.
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(b) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, each Seller pursuant to the applicable Mortgage Loan
Purchase Agreement to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed hereunder, on or before
the Closing Date, the Mortgage Note for each Mortgage Loan so assigned, endorsed
to the Trustee as specified in clause (i) of the definition of "Mortgage File."
Each Seller is required, pursuant to the applicable Mortgage Loan Purchase
Agreement, to deliver to the Trustee the remaining documents constituting the
Mortgage File for each Mortgage Loan within the time period set forth therein.
None of the Trustee, the Fiscal Agent, the Paying Agent, any Custodian, the
Master Servicer or the Special Servicer shall be liable for any failure by any
Seller or the Depositor to comply with the document delivery requirements of the
Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at its expense as to each Mortgage
Loan, promptly (and in any event within 45 days following the receipt thereof)
cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC financing statements,
as appropriate, each assignment to the Trustee referred to in clauses (iv),
(vi)(B) and (ix)(B) of the definition of "Mortgage File". Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee following recording or filing; provided that in those instances where
the public recording office retains the original Assignment of Mortgage,
assignment of Assignment of Leases or assignment of UCC financing statements,
the applicable Seller shall obtain therefrom a certified copy of the recorded
original. The applicable Seller shall forward copies thereof to the Trustee and
the Special Servicer. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
applicable Seller shall, pursuant to the applicable Mortgage Loan Purchase
Agreement, promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the applicable Seller shall
upon receipt thereof cause the same to be duly recorded or filed, as
appropriate.
The parties acknowledge the obligation of each Seller pursuant to
Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreements in favor of the Trustee and the Special
Servicer to empower the Trustee and, in the event of the failure or incapacity
of the Trustee, the Special Servicer, to submit for recording, at the expense of
the applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in the Mortgage
Files (so long as original counterparts have previously been delivered to the
Trustee). The Sellers agree to reasonably cooperate with the Trustee and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage
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Loan. The Trustee shall submit such documents for recording, at the related
Seller's expense, after the periods set forth above provided, however, the
Trustee shall not submit such assignments for recording if the applicable Seller
produces evidence that it has sent any such assignment for recording and
certifies that it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in the
possession of the Depositor or the Sellers that relate to the Mortgage Loans or
B Note and that are not required to be a part of a Mortgage File in accordance
with the definition thereof shall be delivered to the Master Servicer or the
Primary Servicer on its behalf, on or before the date that is 45 days following
the Closing Date and shall be held by the Master Servicer or Primary Servicer on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Depositor shall deliver or cause the related Seller to deliver to the Special
Servicer a copy of each Mortgage File to the extent that (i) such copy has not
previously been delivered to the Special Servicer and (ii) the Special Servicer
requests (in writing) such copy within 180 days following the Closing Date. The
Depositor shall deliver or cause the related Seller to deliver such copy within
a reasonable period following such request by the Special Servicer. To the
extent delivered to the Master Servicer or related Primary Servicer by the
related Seller, the Servicer Mortgage File, will include, to the extent required
to be (and actually) delivered to the applicable Seller pursuant to the
applicable Mortgage Loan documents, copies of the following items: the Mortgage
Note, any Mortgage, the Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity agreement, any loan agreement, the insurance policies or
certificates (as applicable), the property inspection reports, any financial
statements on the property, any escrow analysis, the tax bills, the Appraisal,
the environmental report, the engineering report, the asset summary, financial
information on the Mortgagor/sponsor and any guarantors, any letters of credit,
any intercreditor agreement and any Environmental Insurance Policies. Delivery
of any of the foregoing documents to the applicable Primary Servicer (or
sub-servicer) shall be deemed delivery to the Master Servicer and satisfy the
Depositor's obligations under this Section 2.1(d). None of the Master Servicer,
the Special Servicer or any Primary Servicer shall have any liability for the
absence of any of the foregoing items from the Servicing Mortgage File if such
item was not delivered by the related Seller.
(e) In connection with the Depositor's assignment pursuant to Section
2.1(a) above, the Depositor shall deliver to the Trustee on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date. In addition, the Depositor shall deliver or cause to be
delivered to the Trustee the Swap Contract and the Assignment of Swap Contract.
(f) In connection herewith, the Depositor has acquired the Principal
Loans from Principal, the JHREF Loans from JHREF, the Xxxxx Fargo Loans from
Xxxxx Fargo, the BSF Loans from BSF and the MSDWMC Loans from MSDWMC. The
Depositor will deliver the original Mortgage Notes (or lost note affidavits with
copies of the related Mortgage Notes, as described in the definition of Mortgage
File) relating to the Principal Loans to the Trustee, endorsed as otherwise
provided herein, to effect the transfer to the Trustee of such Mortgage Notes
and all related deeds of trust, mortgages and other loan documents. The
Depositor will
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deliver the original Mortgage Notes (or lost note affidavits with a copies of
the related Mortgage Notes, as described in the definition of Mortgage File)
relating to the JHREF Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver the original Mortgage Notes (or lost note affidavits with copies of the
related Mortgage Notes, as described in the definition of Mortgage File)
relating to the Xxxxx Fargo Loans to the Trustee, endorsed as otherwise provided
herein, to effect the transfer to the Trustee of such Mortgage Notes and all
related deeds of trust, mortgages and other loan documents. The Depositor will
deliver the original Mortgage Notes (or lost note affidavits with copies of the
related Mortgage Notes, as described in the definition of Mortgage File)
relating to the BSF Loans to the Trustee, endorsed as otherwise provided herein,
to effect the transfer to the Trustee of such Mortgage Notes and all related
deeds of trust, mortgages and other loan documents. The Depositor will deliver
the original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
MSDWMC Loans to the Trustee, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, Principal, JHREF, Xxxxx Fargo, BSF and MSDWMC, as
applicable, are required under the Mortgage Loan Purchase Agreements to deliver
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the Principal
Loans shall be deemed to have been transferred from Principal to the Depositor,
the JHREF Loans shall be deemed to have been transferred from JHREF to the
Depositor, the Xxxxx Fargo Loans shall be deemed to have been transferred from
Xxxxx Fargo to the Depositor, the BSF Loans shall be deemed to have been
transferred from BSF to the Depositor and the MSDWMC Loans shall be deemed to
have been transferred from MSDWMC to the Depositor, and all Mortgage Loans shall
be deemed to have been transferred from the Depositor to the Trustee on behalf
of the Certificateholders.
SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold (i) the
documents constituting a part of the Mortgage Files delivered to it (ii) the
REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in each
case, in trust for the use and benefit of all present and future
Certificateholders. To the extent that the contents of the Mortgage File for any
A Note relate to the corresponding B Note, the Trustee, or the Custodian on the
Trustee's behalf, will also hold such Mortgage File in trust for the benefit of
the holder of the related B Note.
On the initial Closing Date in respect of the Initial Certification,
and within 75 days after the initial Closing Date in respect of the Final
Certification, the Trustee shall examine the Mortgage Files in its possession,
and shall deliver to the Depositor, the Sellers, the Master Servicer, the
Special Servicer and the Operating Adviser a certification (the "Initial
Certification" and the "Final Certification", respectively, in the respective
forms set forth as Exhibit B-1 and Exhibit B-2 hereto), which may be in
electronic format (i) in the case of the Initial Certification, as to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as may be specified
in the schedule of exceptions to Mortgage File delivery attached thereto, to the
effect that: (A) all documents pursuant to clause (i) of the definition of
Mortgage File are in its
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possession, (B) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, and (C) each Mortgage Note has
been endorsed as provided in clause (i) of the definition of Mortgage File, and
(ii) in the case of the Final Certification, as to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as may be specified in the schedule of
exceptions to Mortgage File delivery attached thereto, to the effect that: (A)
all documents pursuant to clauses (i), (ii), (iv), (v), (vi), (viii), (x), (xii)
and (xvii) of the definition of Mortgage File required to be included in the
Mortgage File, and with respect to all documents specified in the other clauses
of the definition of Mortgage File to the extent known by a Responsible Officer
of the Trustee to be required pursuant to this Agreement, are in its possession,
(B) such documents have been reviewed by it and have not been materially
mutilated, damaged, defaced, torn or otherwise physically altered, and such
documents relate to such Mortgage Loan, (C) based on its examination and only as
to the Mortgage Note and Mortgage, the street address of the Mortgaged Property
set forth in the Mortgage Loan Schedule respecting such Mortgage Loan accurately
reflects the information contained in the documents in the Mortgage File, and
(D) each Mortgage Note has been endorsed. Notwithstanding the foregoing, the
delivery of a commitment to issue a Title Insurance Policy in lieu of the
delivery of the actual Title Insurance Policy shall not be considered a Material
Document Defect with respect to any Mortgage File if such actual Title Insurance
Policy is delivered to the Trustee or a Custodian on its behalf not later than
the 180th day following the Closing Date. The Trustee shall deliver to the
Master Servicer, the Special Servicer, the Operating Adviser and each Seller a
copy of such Final Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall provide a
confirmation of receipt of recorded assignments of Mortgage (as described in the
definition of Mortgage File, with evidence of recording thereon) or otherwise
provide evidence of such recordation to the Master Servicer, the Special
Servicer, the Operating Advisor and each Seller, and if any recorded assignment
of Mortgage has not been received by the Trustee by such time, the Trustee shall
provide information in such confirmation on the status of missing assignments.
The Trustee agrees to use reasonable efforts to submit for recording any
unrecorded assignments of Mortgage that have been delivered to it (including
effecting such recordation process through or cooperating with the applicable
Seller) such recordation to be at the expense of the applicable Seller;
provided, however, that the Trustee shall not submit for recording any such
assignments if the applicable Seller produces evidence that it has sent any such
assignment for recording and is awaiting its return from the applicable
recording office. In giving the certifications required above, the Trustee shall
be under no obligation or duty to inspect, review or examine any such documents,
instruments, securities or other papers to determine whether they or the
signatures thereon are valid, legal, genuine, enforceable, in recordable form or
appropriate for their represented purposes, or that they are other than what
they purport to be on their face, or to determine whether any Mortgage File
should include any assumption agreement, modification agreement, consolidation
agreement, extension agreement, Assignment of Lease, ground lease, UCC financing
statement, guaranty, written assurance, substitution agreement, lock box
agreement, intercreditor agreement, management agreement or letter of credit.
If any exceptions are noted on a schedule of exceptions attached to the
Final Certification, including exceptions resulting from the fact that the
recordation and/or filing has not been completed (based solely on the absence of
receipt by the Custodian (or the Trustee) of
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the particular documents showing evidence of the recordation and/or filing),
then the Custodian on behalf of the Trustee (or the Trustee) shall continuously
update such schedule of exceptions to reflect receipt of any corrected
documents, additional documents or instruments or evidences of recordation
and/or filing, as to each Mortgage Loan, until the earliest of the following
dates: (i) the date on which all such exceptions are eliminated (any such
elimination resulting from the fact that recordation and/or filing has been
completed shall be based solely on receipt by the Custodian or the Trustee of
the particular documents showing evidence of the recordation and/or filing),
(ii) the date on which all the affected Mortgage Loans are removed from the
Trust and (iii) the second anniversary of the Closing Date, and shall provide
such updated schedule of exceptions (which may be in electronic format) to each
of the Depositor, each Seller (as to its respective Mortgage Loans only), the
Master Servicer, the Special Servicer, the Operating Adviser and the Paying
Agent on or about the date that is 180 days after the Closing Date and then
again every 90 days thereafter (until the earliest date specified above). The
Paying Agent shall promptly forward a copy thereof to each Certificateholder in
the Controlling Class and shall deliver or make available a copy thereof to
other Certificateholders pursuant to Section 5.4(d). Promptly, and in any event
within two Business Days, following any request therefor by the Depositor, the
Master Servicer, the Special Servicer or the Operating Adviser that is made
later than two years following the Closing Date, the Custodian (or the Trustee)
shall deliver an updated schedule of exceptions, which may be in electronic
format (to the extent the prior schedule showed exceptions), to the requesting
Person and the Paying Agent, which shall make available a copy thereof pursuant
to Section 5.4(d).
If, in the course of such review, the Trustee finds any document
constituting a part of a Trustee Mortgage File which does not meet the
requirements of clauses (ii)(A) through (D) in the third preceding paragraph,
the Trustee shall promptly notify the applicable Seller, the Master Servicer,
the Special Servicer, the Operating Adviser, and the Depositor in writing and
the Master Servicer shall, and the Special Servicer may, request such Seller to
correct or cure such defect in the manner and within the period or periods set
forth in the applicable Mortgage Loan Purchase Agreement and absent such
correction or cure, and, in the case of a defect which results from a failure to
meet one or more requirements of clauses (ii)(A) through (C) in the third
preceding paragraph, such defect materially and adversely affects the value of
the related Mortgage Loan or the interest of the Trustee in the related Mortgage
Loan (in the good faith judgment of the Master Servicer or the Trustee), or in
any event in the case of a defect under (ii)(D), the Trustee shall, and the
Special Servicer may, request the applicable Seller, at such Seller's election,
to, and such Seller shall be required promptly upon such request, either (i)
substitute for the related Mortgage Loan, without recourse, a Qualifying
Substitute Mortgage Loan or Loans, which substitution shall be accomplished in
the manner and subject to the conditions set forth in Section 2.3; or (ii)
purchase such Mortgage Loan from the Trust at the Purchase Price therefor in
accordance with the related Mortgage Loan Purchase Agreement. The Purchase Price
for any such Mortgage Loan shall be paid to the Master Servicer and deposited by
the Master Servicer in the Certificate Account. Upon receipt by the Trustee of
written notification of deposit of the Purchase Price or other amount required
of the applicable Seller, signed by a Servicing Officer of the Master Servicer
(which notification shall include a statement as to the accuracy of the
calculation of the Purchase Price or other required deposit), the Trustee shall
release the related Trustee Mortgage File to the applicable Seller and the
Trustee and the Depositor shall execute and deliver such instruments of transfer
or assignment in the forms presented to it, in each case without recourse,
representation or warranty as shall be necessary to
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vest in such Seller, or its designee, title (to the extent that such title was
transferred to the Depositor or the Trustee) to any Mortgage Loan released
pursuant hereto, including title to any property acquired in respect of such
Mortgage Loan or proceeds of any insurance policy with respect thereto.
The Trustee or its authorized agents shall retain possession and
custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR MATERIAL DOCUMENT
DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND WARRANTIES
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been delivered as and when
required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect or breach either (i) materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan,
or (ii) both (A) the document defect or breach materially and adversely affects
the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency. Promptly (but in any event within three Business Days) upon
becoming aware of any such Material Document Defect or Material Breach, the
Master Servicer shall, and the Special Servicer may, request that the related
Seller, not later than 85 days from such Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 85-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code)
but the related Seller is diligently attempting to effect such correction or
cure, as certified by such Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is then
a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred
as a result of a monetary default or as described in clause (ii) or clause (v)
of the definition of "Servicing Transfer Event" and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 not less than 85 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
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If any such Material Document Defect or Material Breach cannot be
corrected or cured in all material respects within the above cure periods, the
related Seller will be obligated, not later than the last day of such permitted
cure period, to (i) repurchase the affected Mortgage Loan or REO Mortgage Loan
from the Trust at the applicable Purchase Price in accordance with the related
Mortgage Loan Purchase Agreement, or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at the related Seller's option, replace such Mortgage Loan or REO
Mortgage Loan with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or Material Breach would cause the Mortgage Loan to be other
than a "qualified mortgage" (as defined in the Code), then notwithstanding the
previous sentence, the repurchase must occur within 85 days from the date the
related Seller was notified of the defect and substitution must occur within the
sooner of (i) 85 days from the date the related Seller was notified of the
defect or (ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the Master
Servicer shall not execute any instrument effecting the substitution unless the
related Seller has delivered to the Trustee for such Qualifying Substitute
Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related Assignment
of Mortgage, and such other documents and agreements as are required by Section
2.1, with the Mortgage Note endorsed as required by Section 2.1 and the Master
Servicer shall be entitled to rely on statements and certifications from the
Trustee for this purpose. No substitution may be made in any calendar month
after the Determination Date for such month. Monthly payments due with respect
to Qualifying Substitute Mortgage Loans in the month of substitution shall not
be part of the Trust and will be retained by Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of substitution, distributions to Certificateholders will include
the Scheduled Payment due on the related Deleted Mortgage Loan for such month
and thereafter the related Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the Mortgage
Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the
substitution of the Qualifying Substitute Mortgage Loan or Loans and upon such
amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and
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cross-defaulted with one or more other Mortgage Loans ("Crossed Mortgage Loans")
and (z) the applicable document defect or breach does not constitute a Material
Document Defect or Material Breach, as the case may be, as to such Crossed
Mortgage Loans (without regard to this paragraph), then the applicable document
defect or breach (as the case may be) shall be deemed to constitute a Material
Document Defect or Material Breach (as the case may be) as to each such Crossed
Mortgage Loan for purposes of the above provisions, and the related Seller shall
be obligated to repurchase or replace each such Crossed Mortgage Loan in
accordance with the provisions above unless, in the case of such breach or
document defect, the Seller (A) provides a Nondisqualification Opinion to the
Trustee at the expense of the Seller and (B) both of the following conditions
would be satisfied if the related Seller were to repurchase or replace only
those Mortgage Loans as to which a Material Breach had occurred without regard
to this paragraph (the "Affected Loan(s)"): (i) the Debt Service Coverage Ratio
for all such other Mortgage Loans (excluding the Affected Loan(s)) for the four
calendar quarters immediately preceding the repurchase or replacement is not
less than the lesser of (A) 0.10x below the debt service coverage ratio for all
such other Mortgage Loans (including the Affected Loan(s)) set forth in Appendix
II to the Final Prospectus Supplement and (B) the debt service coverage ratio
for all such Crossed Mortgage Loans (including the Affected Loan(s)) for the
four preceding calendar quarters preceding the repurchase or replacement, and
(ii) the Loan-to-Value Ratio for all such Crossed Mortgage Loans (excluding the
Affected Loan(s)) is not greater than the greater of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for all such
Crossed Mortgage Loans (including the Affected Loan(s)) set forth in Appendix II
to the Final Prospectus Supplement plus 10% and (B) the loan-to-value ratio for
all such Crossed Mortgage Loans (including the Affected Loan(s)), at the time of
repurchase or replacement. The determination of the Master Servicer as to
whether the conditions set forth above have been satisfied shall be conclusive
and binding in the absence of manifest error. The Master Servicer will be
entitled to cause to be delivered, or direct the related Seller to (in which
case the related Seller shall) cause to be delivered to the Master Servicer, an
Appraisal of any or all of the related Mortgaged Properties for purposes of
determining whether the condition set forth in clause (ii) above has been
satisfied, in each case at the expense of the related Seller if the scope and
cost of the Appraisal is approved by the related Seller (such approval not to be
unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent that the
applicable Seller is required to repurchase or substitute for such Defective
Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed above while
the Trustee continues to hold any Crossed Mortgage Loan, the applicable Seller
and the Depositor have agreed in the related Mortgage Loan Purchase Agreement to
forbear from enforcing any remedies against the other's Primary Collateral but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Mortgage Loans, including with respect to the Trustee, the
Primary Collateral securing Mortgage Loans still held by the Trustee, so long as
such exercise does not impair the ability of the other party to exercise its
remedies against its Primary Collateral. If the exercise of remedies by one
party would impair the ability of the other party to exercise its remedies with
respect to the Primary Collateral securing the Mortgage Loan or Mortgage Loans
held by such party, then both parties have agreed to forbear from exercising
such remedies until the loan documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with the applicable
Mortgage Loan Purchase Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Cross-Collateralized Loans shall be allocated between such
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Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a
pro rata basis based upon their outstanding Principal Balances. All other terms
of the Mortgage Loans shall remain in full force and effect, without any
modification thereof. The Mortgagors set forth on Schedule VIII hereto are
intended third-party beneficiaries of the provisions set forth in this paragraph
and the preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Mortgagor's consent.
Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage (or with respect to the Pari Passu Loan, a copy thereof) that appears
to be regular on its face, unless there is included in the Mortgage File a
certified copy of the Mortgage by the local authority with which the Mortgage
was recorded; or (c) the absence from the Mortgage File of the item called for
by paragraph (viii) of the definition of Mortgage File (or, with respect to the
Pari Passu Loan, a copy thereof). If any of the foregoing Material Document
Defects is discovered by the Custodian (or the Trustee if there is no
Custodian), the Trustee (or as set forth in Section 2.3(a), the Master Servicer)
will take the steps described elsewhere in this section, including the giving of
notices to the Rating Agencies and the parties hereto and making demand upon the
related Seller for the cure of the document defect or repurchase or replacement
of the related Mortgage Loan.
If the related Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises a portion of the
Purchase Price. The related Seller shall be notified promptly and in writing by
(i) the Trustee of any notice that it receives that an Option Holder intends to
exercise its Option to purchase the Mortgage Loan in accordance with and as
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described in Section 9.36 hereof and (ii) the Special Servicer of any offer that
it receives to purchase the applicable REO Property, each in connection with
such liquidation. Upon the receipt of such notice by the related Seller, the
related Seller shall then have the right to purchase the related Mortgage Loan
or REO Property, as applicable, from the Trust at a purchase price equal to, in
the case of clause (i) of the immediately preceding sentence, the Option
Purchase Price or, in the case of clause (ii) of the immediately preceding
sentence, the amount of such offer. Notwithstanding anything to the contrary
contained herein or in the related Mortgage Loan Purchase Agreement, the right
of any Option Holder to purchase such Mortgage Loan shall be subject and
subordinate to the Seller's right to purchase such Mortgage Loan as described in
the immediately preceding sentence. The related Seller shall have five (5)
Business Days to notify the Trustee or the Special Servicer, as applicable, of
its intent to so purchase the Mortgage Loan or related REO Property from the
date that it was notified of such intention to exercise such Option or of such
offer. The Special Servicer shall be obligated to provide the related Seller
with any appraisal or other third party reports relating to the Mortgaged
Property within its possession to enable the related Seller to evaluate the
related Mortgage Loan or REO Property. Any sale of the related Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of the related REO Property, to a
Person other than the related Seller shall be without (i) recourse of any kind
(either expressed or implied) by such Person against the related Seller and (ii)
representation or warranty of any kind (either expressed or implied) by the
related Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the Master Servicer shall notify the related Seller of the discovery of
the Material Document Defect or Material Breach and the related Seller shall
have 90 days to correct or cure such Material Document Defect or Material Breach
or purchase the REO Property at the Purchase Price. If the related Seller fails
to correct or cure the Material Document Defect or Material Breach or purchase
the REO Property, then the provisions above regarding notice of offers related
to such REO Property and the related Seller's right to purchase such REO
Property shall apply. If a court of competent jurisdiction issues a final order
that the related Seller is or was obligated to repurchase the related Mortgage
Loan or REO Mortgage Loan or the related Seller otherwise accepts liability,
then, after the expiration of any applicable appeal period, but in no event
later than the Termination of the Trust pursuant to Section 9.30 hereof, the
related Seller will be obligated to pay to the Trust the difference between any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Seller) and the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover all costs, fees and
expenses (including reasonable attorneys fees) related thereto.
In connection with any sale or other liquidation of a Mortgage Loan or
REO Property as described in this Section 2.3, the Special Servicer shall not
receive a Liquidation Fee in connection with such sale or other liquidation
until a final determination has been made, as set forth in the preceding
paragraph, as to whether the related Seller is or was obligated to repurchase
such Mortgage Loan or REO Property. Upon such determination, the Special
Servicer shall be entitled to collect a Liquidation Fee (i) with respect to a
determination that the related Seller is or was obligated to repurchase, based
upon the full Purchase Price of the related
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Mortgage Loan, including all related expenses up to the date the remainder of
such Purchase Price is actually paid, with such Liquidation Fee payable by the
related Seller or (ii) with respect to a determination that the related Seller
is not or was not obligated to repurchase (or the Trust decides that it will no
longer pursue a claim against the related Seller for repurchase), based upon the
Liquidation Proceeds as received upon the actual sale or liquidation of such
Mortgage Loan, with such amount to be paid from amounts in the Collection
Account.
In any month in which the related Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the
Master Servicer will determine the amount (if any) by which the aggregate
Principal Balance of all such Qualified Substitute Mortgage Loans as of the date
of substitution is less than the aggregate Principal Balance of all such Deleted
Mortgage Loans (in each case after application of scheduled principal portion of
the monthly payments received in the month of substitution). The Depositor shall
cause the related Seller to deposit the amount of such shortage into the
Certificate Account in the month of substitution, without any reimbursement
thereof. In addition, the Depositor shall cause the related Seller to deposit
into the Certificate Account, together with such shortage, if any, an amount
equal to interest on the Deleted Mortgage Loans at a rate equal to the sum of
the applicable Mortgage Rate from the Due Date as to which interest was last
paid up to the Due Date next succeeding such substitution together with the
amount of unreimbursed Servicing Advances, amounts required to be paid to the
Special Servicer but remaining unpaid or unreimbursed, and interest on
unreimbursed Advances with respect to such Deleted Mortgage Loans at the Advance
Rate. The Depositor shall cause the related Seller, in the case of the Mortgage
Loans, to give notice in writing (accompanied by an Officer's Certificate as to
the calculation of such shortage) to the Trustee, the Paying Agent and the
Master Servicer of such event which notice shall be accompanied by an Officers'
Certificate as to the calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master Servicer
shall designate the Certificate Account as the account to which funds in the
amount of the Purchase Price are to be wired. Any such purchase of a Mortgage
Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 2.3, the Trustee, the Master Servicer and the
Special Servicer shall each tender to the related Seller, upon delivery to each
of them of a receipt executed by such Seller, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by it, and each
document that constitutes a part of the Mortgage File shall be endorsed or
assigned to the extent necessary or appropriate to the related Seller or its
designee in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee, but in any event, without recourse,
representation or warranty; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release.
The Master Servicer shall, and is hereby authorized and empowered by the Trustee
to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the
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related Seller any deposits then held in an Escrow Account relating to the
Mortgage Loan being repurchased or substituted for. The Master Servicer shall
indemnify the Trustee for all costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with any negligent or
intentional misuse of any such powers of attorney by the Master Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) Principal, as Seller under Mortgage
Loan Purchase Agreement III, will be providing the remedies with respect to the
Principal Loans, (ii) JHREF, as Seller under Mortgage Loan Purchase Agreement I,
will be providing the remedies with respect to the JHREF Loans, (iii) Xxxxx
Fargo, as Seller under Mortgage Loan Purchase Agreement II, will be providing
the remedies with respect to the Xxxxx Fargo Loans, (iv) BSF, as Seller under
Mortgage Loan Purchase Agreement IV, will be providing the remedies with respect
to the BSF Loans and (v) MSDWMC, as Seller under Mortgage Loan Purchase
Agreement V, will be providing the remedies with respect to the MSDWMC Loans.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor hereby
represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly existing and
in good standing under the laws governing its creation and existence and has
full corporate power and authority to own its property, to carry on its business
as presently conducted, to enter into and perform its obligations under this
Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Depositor; neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, (i) any of the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the Depositor of this
Agreement and the consummation of the transactions contemplated hereby do not
require the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal or
other governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof;
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(d) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or, to the best
of the Depositor's knowledge, threatened or likely to be asserted against or
affecting the Depositor, before or by any court, administrative agency,
arbitrator or governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter which in
the judgment of the Depositor will be determined adversely to the Depositor and
will, if determined adversely to the Depositor, materially and adversely affect
it or its business, assets, operations or condition, financial or otherwise, or
adversely affect its ability to perform its obligations under this Agreement;
and
(f) Immediately prior to the consummation of the transactions
contemplated in this Agreement, the Depositor had good title to and was the sole
owner of each Mortgage Loan free and clear of any and all adverse claims,
charges or security interests (including liens arising under the federal tax
laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the Closing Date,
the Depositor does hereby transfer, assign, set over, deposit with and otherwise
convey to the Trustee, without recourse, in trust, all the right, title and
interest of the Depositor in and to (i) the REMIC I Regular Interests in
exchange for the REMIC II Interests, (ii) the REMIC II Regular Interests in
exchange for the REMIC III Certificates, and (iii) the Class A-2 Regular
Interest and the Swap Contract and all payments under the Class A-2 Regular
Interest and the Swap Contract, all funds and assets from time to time on
deposit in the Floating Rate Account and proceeds of all of the foregoing in
exchange for the Class A-2 Certificates.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms set forth in
the Exhibits attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement or as may in the reasonable judgment of the Trustee or the Depositor
be necessary, appropriate or convenient to comply, or facilitate compliance,
with applicable laws, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange on which any of the
Certificates may be listed, or as may, consistently herewith, be determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten, lithographed
or engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on which
any of the Certificates may be listed,
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all as determined by the officers executing such Certificates, as evidenced by
their execution thereof.
(b) The Class A Certificates will be issuable in denominations of
$25,000 initial Certificate Balance and in any whole dollar denomination in
excess thereof. The Class X, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M and Class N Certificates will be
issuable in denominations of $100,000 initial Certificate Balance or initial
Notional Amount (as applicable) or in any whole dollar denomination in excess
thereof. The Class R-I, Class R-II and Class R-III Certificates will be issued
in minimum Percentage Interests of 10% and integral multiples of 10% in excess
thereof.
(c) Each Certificate shall, on original issue, be executed by the
Certificate Registrar and authenticated by the Authenticating Agent upon the
order of the Depositor. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual signature, and such certification upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates that are issued in book-entry form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class G, Class H, Class J, Class K, Class L, Class
M and Class N Certificates that are issued in definitive form, on the Closing
Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Definitive Certificates that are issued to the registered holder
thereof against payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the initial
Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
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SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof only upon
presentation and surrender of such Certificate at the Corporate Trust Office,
duly endorsed or accompanied by a written instrument of transfer duly executed
by such Holder or such Holder's duly authorized attorney in such form as shall
be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
(b) A Certificate may be exchanged by the Holder thereof for any number
of new Certificates of the same Class, in authorized denominations, representing
in the aggregate the same initial Certificate Balance, initial Notional Amount
or Percentage Interest, as the case may be, as the Certificate surrendered, upon
surrender of the Certificate to be exchanged at the offices of the Certificate
Registrar duly endorsed or accompanied by a written instrument of exchange duly
executed by such Holder or such Holder's duly authorized attorney in such form
as is satisfactory to the Certificate Registrar. Certificates delivered upon any
such exchange will evidence the same obligations, and will be entitled to the
same rights and privileges, as the Certificates surrendered. No service charge
shall be made to a Certificateholder for any exchange of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any exchange of
Certificates. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate, date and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written
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certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based (such Opinion of Counsel shall not be an expense of the Trust or of the
Depositor, the Master Servicer, the Special Servicer, the Paying Agent, the
Trustee or the Certificate Registrar in their respective capacities as such). If
a transfer of any interest in a Non-Registered Certificate that constitutes a
Book-Entry Certificate is to be made without registration under the Securities
Act (other than in connection with the initial issuance of the Certificates or a
transfer of any interest in such Non-Registered Certificate by the Depositor or
any of its Affiliates), then the Certificate Owner desiring to effect such
transfer shall be required to obtain either (i) a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit D-3A hereto or as Exhibit D-3B hereto, or (ii) an Opinion of Counsel to
the effect that such transfer may be made without registration under the
Securities Act. None of the Depositor, the Fiscal Agent, the Paying Agent, the
Trustee, the Master Servicer, the Special Servicer or the Certificate Registrar
is obligated to register or qualify any Class of Non-Registered Certificates
under the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Certificate. Any Certificateholder or Certificate Owner desiring to effect a
transfer of Non-Registered Certificates or interests therein shall, and does
hereby agree to, indemnify the Depositor, each Underwriter, the Trustee, the
Fiscal Agent, the Master Servicer, the Special Servicer, the Paying Agent and
the Certificate Registrar against any liability that may result if the transfer
is not exempt from such registration or qualification or is not made in
accordance with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or Residual
Certificate or any interest therein shall be made (A) to any employee benefit
plan or other retirement arrangement, including individual retirement accounts
and annuities, Xxxxx plans and collective investment funds and separate accounts
in which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to ERISA or
Section 4975 of the Code or any applicable federal, state or local law ("Similar
Laws") materially similar to the foregoing provisions of ERISA or the Code
(each, a "Plan"), (B) in book-entry form to an Institutional Accredited Investor
who is not also a Qualified Institutional Buyer or (C) to any Person who is
directly or indirectly purchasing such Certificate or interest therein on behalf
of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan,
unless: (i) in the case of a Non-Investment Grade Certificate that constitutes a
Book-Entry Certificate and is being sold to a Qualified Institutional Buyer, the
purchase and holding of such Certificate or interest therein qualifies for the
exemptive relief available under Sections I and III of U.S. Department of Labor
Prohibited Transaction Class Exemption ("PTCE") 95-60; or (ii) in the case of a
Non-Investment Grade Certificate or Residual Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, the Master Servicer, the Special Servicer or the
Certificate Registrar to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Non-Investment Grade Certificate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to
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deliver to the Certificate Registrar (or, in the case of an interest in a
Non-Investment Grade Certificate that constitutes a Book-Entry Certificate, to
the Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with "plan assets" of a Plan; or (ii) that
the purchase and holding of such Certificate or interest therein by such person
qualifies for the exemptive relief available under Sections I and III of PTCE
95-60 or another exemption from the "prohibited transactions" rules under ERISA
by the U.S. Department of Labor or similar exemption under Similar Laws.
(e) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Paying Agent under clause (F) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Certificate Registrar under clause (G) below to negotiate the terms of any
mandatory sale and to execute all instruments of Transfer and to do all other
things necessary in connection with any such sale. The rights of such person
acquiring any Ownership Interest in a Residual Certificate are expressly subject
to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United
States Tax Person and shall promptly notify the Certificate Registrar
of any change or impending change in its status as a Permitted
Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit and agreement substantially in the form attached hereto as
Exhibit E-1 (a "Transfer Affidavit and Agreement") from the proposed
Transferee, in form and substance satisfactory to the Certificate
Registrar, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Certificate that is the subject of
the proposed Transfer as a nominee, trustee or agent for any Person
that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to
remain a Permitted Transferee, that it is a United States Person, that
it has historically paid its debts as they have come due and will
continue to do so in the future, that it understands that its tax
liability with respect to the Residual Certificates may exceed cash
flows thereon and it intends to pay such taxes as they come due, that
it will provide the Certificate Registrar with all information
necessary to determine that the applicable paragraphs of Section 13 of
such Transfer Affidavit and Agreement are true or that Section 13 is
not applicable, and that it has reviewed the provisions of this Section
3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee
is not a Permitted
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Transferee or is not a United States Person, no Transfer of an
Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar a
certificate substantially in the form attached hereto as Exhibit E-2
among other things stating that (x) it has conducted a reasonable
investigation of the financial condition of the proposed Transferee
and, as a result of the investigation, the Transferor determines that
the proposed Transferee had historically paid its debts as they came
due and found no significant evidence that the proposed Transferee will
not continue to pay its debts as they come due in the future and, (y)
it has no actual knowledge that such prospective Transferee is not a
Permitted Transferee or is not a United States Person.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section
1.67-3T(a)(2)(i)(A) or is holding an Ownership Interest in a Residual
Certificate on behalf of a "pass-through interest holder", by
purchasing an Ownership Interest in such Certificate, agrees to give
the Certificate Registrar written notice of its status as such
immediately upon holding or acquiring such Ownership Interest in a
Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section
3.3(e) or if any Holder of a Residual Certificate shall lose its status
as a Permitted Transferee or a United States Person, then the last
preceding Holder of such Residual Certificate that was in compliance
with the provisions of this Section 3.3(e) shall be restored, to the
extent permitted by law, to all rights and obligations as Holder
thereof retroactive to the date of registration of such Transfer of
such Residual Certificate. None of the Trustee, the Fiscal Agent, the
Master Servicer, the Special Servicer, the Certificate Registrar or the
Paying Agent shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not
permitted by this Section 3.3(e) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its
status as a Permitted Transferee or a United States Person, and to the
extent that the retroactive restoration of the rights and obligations
of the prior Holder of such Residual Certificate as described in clause
(F) above shall be invalid, illegal or unenforceable, then the Trustee
shall have the right, without notice to the Holder or any prior Holder
of such Residual Certificate, but not the obligation, to sell or cause
to be sold such Residual
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Certificate to a purchaser selected by the Trustee on such terms as the
Trustee may choose. Such noncomplying Holder shall promptly endorse and
deliver such Residual Certificate in accordance with the instructions
of the Certificate Registrar. Such purchaser may be the Certificate
Registrar itself or any Affiliate of the Certificate Registrar. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the Certificate
Registrar to such noncomplying Holder. The terms and conditions of any
sale under this clause (G) shall be determined in the sole discretion
of the Certificate Registrar, and the Certificate Registrar shall not
be liable to any Person having an Ownership Interest in a Residual
Certificate as a result of its exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
The provisions of this Section 3.3(e) may be modified, added to or
eliminated, provided that there shall have been delivered to the Trustee, the
Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause such Rating Agency to qualify, downgrade
or withdraw its then current rating of any Class of Certificates;
and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, the Certificate Registrar and the Depositor, to the
effect that such modification of, addition to or elimination of such
provisions will not cause any of REMIC I, REMIC II or REMIC III to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level
tax caused by the Transfer of any Residual Certificate to a Person
which is not a Permitted Transferee, or cause a Person other than
the prospective Transferee to be subject to a tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Paying Agent or the Certificate Registrar shall have any
liability to the Trust arising from a transfer of any Certificate in reliance
upon a certification, ruling or Opinion of Counsel
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described in this Section 3.3; provided, however, that the Certificate Registrar
shall not register the transfer of a Residual Certificate if it has actual
knowledge that the proposed transferee does not meet the qualifications of a
permitted Holder of a Residual Certificate as set forth in Section 3.3(e);
provided, further, that the Certificate Registrar shall not register the
transfer of a Noneconomic Residual Interest if it shall have received notice
that the Transferor has determined, as a result of the investigation under
Section 3.3(e)(D), that the proposed Transferee has not paid its debts as they
came due or that it will not pay its debts as they come due in the future. The
Certificate Registrar shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restriction on transfer or exchange of
Certificates or any interest therein imposed under this Article III or under
applicable law other than to require delivery of the certifications and/or
opinions described in this Article III; provided, however, that the Certificate
Registrar shall not register the transfer of a Residual Certificate if it has
actual knowledge that the proposed transferee does not meet the qualifications
of a permitted Holder of a Residual Certificate as set forth in Section 3.3(e).
The Certificate Registrar shall have no liability for transfers (including
without limitation transfers made through the book-entry facilities of the
Depository or between or among Participants or Certificate Owners) made in
violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master Servicer, the
Special Servicer and the Depositor, upon written request, with an updated copy
of the Certificate Register within a reasonable period of time following receipt
of such request.
(i) Unless and until it is exchanged in whole for the individual
Certificates represented thereby, a Global Certificate representing all of the
Certificates of a Class may not be transferred, except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (A) any
mutilated Certificate is surrendered to the Certificate Registrar, or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (B) except in the case of a mutilated
Certificate so surrendered, there is delivered to the Certificate Registrar such
security or indemnity as may be required by it to save it harmless, then, in the
absence of notice to the Certificate Registrar that such Certificate has been
acquired by a bona fide purchaser, the Certificate Registrar shall execute, and
the Authenticating Agent shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and interest in the Trust. In connection with the
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issuance of any new Certificate under this Section 3.4, the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Certificate Registrar)
connected therewith. Any replacement Certificate issued pursuant to this Section
3.4 shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of a Certificate
for registration of transfer, the Master Servicer, the Special Servicer, the
Fiscal Agent, the Trustee, the Operating Adviser, the Paying Agent and any agent
of the Master Servicer, the Special Servicer, the Fiscal Agent, the Paying
Agent, the Trustee or the Operating Adviser may treat the Person in whose name
any Certificate is registered as of the related Record Date as the owner of such
Certificate for the purpose of receiving distributions as provided in this
Agreement and for all other purposes whatsoever, and neither the Master
Servicer, the Special Servicer, the Fiscal Agent, the Trustee, the Paying Agent,
the Operating Adviser nor any agent of the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Paying Agent or the Operating
Adviser shall be affected by any notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders, a Certificateholder holding all the
Certificates of any Class of Certificates, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee, the Operating Adviser or the Depositor
(A) request in writing from the Certificate Registrar a list of the names and
addresses of Certificateholders and (B) in the case of a request by
Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Swap Counterparty, the Trustee or the Operating Adviser, as applicable, access
during normal business hours to a current list of the Certificateholders. The
expense of providing any such information requested by such Person shall be
borne by the party requesting such information and shall not be borne by the
Certificate Registrar or the Trustee. Every Certificateholder, by receiving and
holding a Certificate, agrees that the Certificate Registrar and the Trustee
shall not be held accountable by reason of the disclosure of any such
information as to the list of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A, Class X-1, Class X-2, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates, upon original issuance, each shall be issued in the form of one or
more Certificates representing the Book-Entry Certificates, to be delivered to
the Certificate Registrar, as custodian for The Depository Trust Company (the
"Depository"), the initial Clearing Agency, by, or on behalf of, the Depositor,
provided, that any Non-Investment Grade Certificates sold to Institutional
Accredited Investors who are not Qualified Institutional Buyers will be issued
as Definitive Certificates. The Certificates shall initially be registered on
the Certificate Register in the name
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of Cede & Co., the nominee of the Depository, as the initial Clearing Agency,
and no Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Certificates, except as provided in Section
3.9. Unless and until Definitive Certificates have been issued to the
Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in full force and
effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying Agent, the
Certificate Registrar and the Trustee may deal with the Clearing Agency for
all purposes (including the making of distributions on the Certificates) as
the authorized representative of the Certificate Owners;
(iii) to the extent that the provisions of this Section 3.7 conflict
with any other provisions of this Agreement, the provisions of this Section
3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each such Class shall be
exercised only through the Clearing Agency and the applicable Participants
and shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency and/or the Participants.
Pursuant to the Depository Agreement, unless and until Certificates are
issued pursuant to Section 3.9, the initial Clearing Agency will make
book-entry transfers among the Participants and receive and transmit
distributions of principal and interest on the related Certificates to such
Participants.
(b) For purposes of any provision of this Agreement requiring or permitting
actions with the consent of, or at the direction of, Holders of the Certificates
evidencing a specified percentage of the aggregate unpaid principal amount of
Certificates, such direction or consent may be given by the Clearing Agency at
the direction of Certificate Owners owning Certificates evidencing the requisite
percentage of principal amount of Certificates. The Clearing Agency may take
conflicting actions with respect to the Certificates to the extent that such
actions are taken on behalf of the Certificate Owners.
(c) The Certificates of each Class (other than the Residual Certificates)
initially sold in reliance on Rule 144A or with respect to the Class A, Class B,
Class C, Class D, Class E and Class F Certificates sold to Institutional
Accredited Investors shall be represented by the Rule 144A-IAI Global
Certificate for such Class, which shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository. The Class G, Class H, Class J, Class K, Class
L, Class M and Class N Certificates initially sold to Institutional Accredited
Investors shall represented by IAI Definitive Certificates for such Class. The
Certificates evidenced by any Rule 144A-IAI Global Certificate or IAI Definitive
Certificate shall be subject to certain restrictions on transfer as set forth in
Section 3.3 hereof and shall bear legend(s) regarding such restrictions
described herein.
(d) The Certificates of each Class (other than the Residual Certificates)
initially sold in offshore transactions in reliance on Regulation S shall be
represented by the Regulation S Temporary Global Certificate for such Class,
which shall be deposited with the
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Certificate Registrar, as custodian for the Depository and registered in the
name of Cede & Co. as nominee of the Depository. Not earlier than the Release
Date, beneficial interests in any Regulation S Temporary Global Certificate
shall be exchangeable for beneficial interests in the Regulation S Permanent
Global Certificate for such Class. Beneficial interests in any Regulation S
Temporary Global Certificate may be held only through Euroclear or Clearstream;
provided, however, that such interests may be exchanged for interests in the
Rule 144A-IAI Global Certificate for such Class in accordance with the
certification requirements described in Section 3.7(f). The Regulation S
Permanent Global Certificates shall be deposited with the Certificate
Registrar, as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository.
On or prior to the Release Date and on or prior to any Distribution Date
occurring prior to the Release Date, each Certificate Owner of a Regulation S
Temporary Global Certificate that holds a beneficial interest therein on the
Release Date or on any such Distribution Date, as the case may be, must deliver
to Euroclear or Clearstream (as applicable) a Regulation S Certificate;
provided, however, that any Certificate Owner that holds a beneficial interest
in a Regulation S Temporary Global Certificate on the Release Date or on any
such Distribution Date that has previously delivered a Regulation S Certificate
to Euroclear or Clearstream with respect to its interest therein does not need
to deliver any subsequent Regulation S Certificate (unless the certificate
previously delivered is no longer true as of such subsequent date, and such
Certificate Owner must promptly notify Euroclear or Clearstream, as applicable,
thereof). Euroclear or Clearstream, as applicable, shall be required to
promptly deliver to the Certificate Registrar a certificate substantially in
the form of Exhibit I hereto to the effect that it has received the requisite
Regulation S Certificates for each such Class, and no Certificate Owner (or
transferee from any such Certificate Owner) shall be entitled to receive an
interest in the Regulation S Permanent Global Certificate for such Class or any
payment or principal or interest with respect to its interest in such
Regulation S Temporary Global Certificate prior to the Certificate Registrar
receiving such certification from Euroclear or Clearstream with respect to the
portion of the Regulation S Temporary Global Certificate owned by such
Certificate Owner (and, with respect to an interest in the applicable
Regulation S Permanent Global Certificate, prior to the Release Date). After
the Release Date, distributions due with respect to any beneficial interest in
a Regulation S Temporary Global Certificate shall not be made to the holders of
such beneficial interests unless exchange for a beneficial interest in the
related Regulation S Permanent Global Certificate is improperly withheld or
refused. No interest in a Regulation S Global Certificate may be held by or
transferred to a U.S. Person (as defined in Regulation S) except for exchanges
for a beneficial interest in the Rule 144A-IAI Global Certificate for such
Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in Section 3.9,
owners of beneficial interests in Global Certificates shall not be entitled to
receive physical delivery of Definitive Certificates. The Certificates are not
issuable in bearer form. Upon the issuance of each Global Certificate, the
Depository or its custodian shall credit, on its internal system, the
respective principal amount of the individual beneficial interests represented
by such Global Certificate to the accounts of Persons who have accounts with
such Depository. Such accounts initially shall be designated by or on behalf of
the Underwriters and Placement Agents. Ownership of beneficial interests in a
Global Certificate shall be limited to Customers or Persons who hold interests
directly or indirectly through Customers. Ownership of beneficial interests in
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the Global Certificates shall be shown on, and the transfer of that ownership
shall be effected only through, records maintained by the Depository or its
nominee (with respect to interests of Customers) and the records of Customers
(with respect to interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered holder of a
Global Certificate, the Depository or such nominee, as the case may be, shall
be considered the sole owner and holder of the Certificates represented by such
Global Certificate for all purposes under this Agreement and the Certificates,
including, without limitation, obtaining consents and waivers thereunder, and
the Trustee, the Paying Agent and the Certificate Registrar shall not be
affected by any notice to the contrary. Except under the circumstance described
in Section 3.9, owners of beneficial interests in a Global Certificate will not
be entitled to have any portions of such Global Certificate registered in their
names, will not receive or be entitled to receive physical delivery of
Definitive Certificates in certificated form and shall not be considered the
owners or holders of the Global Certificate (or any Certificates represented
thereby) under this Agreement or the Certificates. In addition, no Certificate
Owner of an interest in a Global Certificate shall be able to transfer that
interest except in accordance with the Depository's applicable procedures (in
addition to those under this Agreement and, if applicable, those of Euroclear
and Clearstream).
(f) Any holder of an interest in a Regulation S Global Certificate shall
have the right, upon prior written notice to the Certificate Registrar,
Euroclear or Clearstream, as applicable, and the Depository, in the form of an
Exchange Certification (substantially in the form of Exhibit H attached
hereto), to exchange all or a portion of such interest (in authorized
denominations as set forth in Section 3.1(b)) for an equivalent interest in the
Rule 144A-IAI Global Certificate for such Class in connection with a transfer
of its interest therein to a transferee that is eligible to hold an interest in
such Rule 144A-IAI Global Certificate as described herein; provided, however,
that no Exchange Certification shall be required if any such exchange occurs
after the Release Date. Any holder of an interest in the Rule 144A-IAI Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, the Depository and Euroclear or Clearstream, as applicable, in the
form of an Exchange Certification, to exchange all or a portion of such
interest (in authorized denominations as set forth in Section 3.1(b)) for an
equivalent interest in the Regulation S Global Certificate for such Class in
connection with a transfer of its interest therein to a transferee that is
eligible to hold an interest in such Regulation S Global Certificate as
described herein; provided, however, that if such exchange occurs prior to the
Release Date, the transferee shall acquire an interest in a Regulation S
Temporary Global Certificate only and shall be subject to all of the
restrictions associated therewith described in Section 3.7(d). Following
receipt of any Exchange Certification or request for transfer, as applicable,
by the Certificate Registrar: (i) the Certificate Registrar shall endorse the
schedule to any Global Certificate representing the Certificate or Certificates
being exchanged to reduce the stated principal amount of such Global
Certificate by the denominations of the Certificate or Certificates for which
such exchange is to be made, and (ii) the Certificate Registrar shall endorse
the schedule to any Global Certificate representing the Certificate or
Certificates for which such exchange is to be made to increase the stated
principal amount of such Global Certificate by the denominations of the
Certificate or Certificates being exchanged therefor. The form of the Exchange
Certification shall be available from the Certificate Registrar.
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SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all
such notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices
and communications to the related Participants in accordance with its
applicable rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of beneficial
interests in a Global Certificate or their nominees if (i) the Clearing Agency
notifies the Depositor and the Certificate Registrar in writing that the
Clearing Agency is unwilling or unable to continue as depositary for such
Global Certificate and a qualifying successor depositary is not appointed by
the Depositor within 90 days thereof, (ii) the Trustee has instituted or caused
to be instituted or has been directed to institute any judicial proceeding in a
court to enforce the rights of the Certificateholders under this Agreement and
under such Global Certificate and the Trustee has been advised by counsel that
in connection with such proceeding it is necessary or advisable for the Trustee
or its custodian to obtain possession of such Global Certificate, or (iii)
after the occurrence of an Event of Default, Certificate Owners representing a
majority in aggregate outstanding Certificate Balance of such Global
Certificate advise the Clearing Agency through the Participants in writing (and
the Clearing Agency so advises the Depositor, the Certificate Registrar and the
Master Servicer in writing) that the continuation in global form of the
Certificates being evidenced by such Global Certificate is no longer in their
best interests; provided, that under no circumstances will Definitive
Certificates be issued to Certificate Owners of the Regulation S Temporary
Global Certificate. Upon notice of the occurrence of any of the events
described in the preceding sentence, the Certificate Registrar shall notify the
Clearing Agency and request the Clearing Agency to notify all Certificate
Owners, through the applicable Participants, of the occurrence of the event and
of the availability of Definitive Certificates to such Certificate Owners
requesting the same. Upon surrender to the Certificate Registrar of the Global
Certificates by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Certificate Registrar shall
execute, and the Authenticating Agent shall authenticate and deliver, the
Definitive Certificates. None of the Depositor, the Trustee, the Paying Agent,
the Certificate Registrar or the Fiscal Agent shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect
to such Definitive Certificates, and the Certificate Registrar and the Trustee
and the Paying Agent shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
(b) Distributions of principal and interest on the Definitive Certificates
shall be made by the Paying Agent directly to holders of Definitive
Certificates in accordance with the procedures set forth in this Agreement.
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ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided herein by
the Master Servicer and, if the Master Servicer does not make such Advances, by
the Trustee, and if the Trustee does not make such Advances, by the Fiscal
Agent except to the extent that the Master Servicer, the Trustee or the Fiscal
Agent, as applicable, determines in accordance with Section 4.4 below, that any
such Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master Servicer shall
notify the Trustee and the Paying Agent if the P&I Advance Amount for such
Distribution Date is greater than zero, and the Master Servicer shall make a
P&I Advance in respect of each Mortgage Loan of such amount no later than the
Master Servicer Remittance Date. It is understood that the obligation of the
Master Servicer to make such P&I Advances is mandatory and shall apply through
any court appointed stay period or similar payment delay resulting from any
insolvency of the Mortgagor or related bankruptcy, notwithstanding any other
provision of this Agreement. Notwithstanding the foregoing, the Master Servicer
shall not be required to make such P&I Advance, if the Master Servicer
determines, in accordance with Section 4.4 below, that any such P&I Advance
would be a Nonrecoverable Advance. Such determination shall be conclusive and
binding on the Trustee, the Fiscal Agent and the Certificateholders. The Master
Servicer, the Trustee and the Fiscal Agent shall not make P&I Advances with
respect to any B Note under this Agreement. The Master Servicer shall not
advance any amount due to be paid by the Swap Counterparty for distribution to
the Class A-2 Certificates in the event that the Swap Counterparty fails to
make a required payment. The Special Servicer shall not make P&I Advances under
this Agreement and shall not advance any amount due to be paid by the Swap
Counterparty for distribution to the Class A-2 Certificates in the event that
the Swap Counterparty fails to make a required payment. If the Master Servicer
fails to make a P&I Advance, it shall promptly notify the Trustee and the
Paying Agent of such failure.
(b) If the Master Servicer determines that there is a P&I Advance Amount
for a Distribution Date, the Master Servicer shall on the Master Servicer
Remittance Date either (A) deposit in the Certificate Account an amount equal
to the P&I Advance Amount or (B) utilize funds in the Certificate Account being
held for future distributions or withdrawals to make such Advance. Any funds
being held in the Certificate Account for future distribution or withdrawal and
so used shall be replaced by the Master Servicer from its own funds by deposit
in the Certificate Account on or before any future Master Servicer Remittance
Date to the extent that funds in the Certificate Account on such Master
Servicer Remittance Date shall be less than payments to the Paying Agent or
other Persons required to be made on such date.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if the Master
Servicer does not, the Trustee to the extent the Trustee receives written
notice from the Paying Agent that such Advance has not been made by the Master
Servicer, and if the Trustee does not, the Fiscal Agent (if the Fiscal Agent
has knowledge that such Advance is required to be made), shall make Servicing
Advances to the extent provided in this Agreement, except to the extent
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that the Master Servicer, the Trustee or the Fiscal Agent, as applicable,
determines in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance. Such determination by the Master Servicer shall be
conclusive and binding on the Trustee, the Fiscal Agent and the
Certificateholders and, in the case of any B Note, the holder of the B Note.
The Special Servicer shall not be required to make Servicing Advances under
this Agreement. Promptly after discovering that the Master Servicer has failed
to make a Servicing Advance that the Master Servicer is required to make
hereunder, the Paying Agent shall promptly notify the Trustee in writing of the
failure by the Master Servicer to make such Servicing Advance.
SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a P&I Advance by
the Master Servicer Remittance Date (other than a P&I Advance that the Master
Servicer determines is a Nonrecoverable Advance), the Trustee shall make such
P&I Advance to the extent the Trustee receives written notice from the Paying
Agent not later than 10:00 a.m. (New York City time) on the Distribution Date
that such Advance has not been made by the Master Servicer on the Master
Servicer Remittance Date unless the Trustee determines that such P&I Advance,
if made, would be a Nonrecoverable Advance. To the extent that the Trustee
fails to make a P&I Advance required to be made by the Trustee hereunder on the
Distribution Date (other than a P&I Advance that the Master Servicer or the
Trustee determines is a Nonrecoverable Advance), the Fiscal Agent will advance
such P&I Advance unless the Fiscal Agent determines that any such P&I Advance,
if made, would be a Nonrecoverable Advance. To the extent that the Fiscal Agent
is required hereunder to make P&I Advances on the Mortgage Loans, it shall
deposit the amount thereof in the Distribution Account by 1:00 p.m. (New York
City time) on each such Distribution Date. The Paying Agent shall notify the
Trustee in writing as soon as practicable, but not later than 10:00 a.m. (New
York City time) on the Distribution Date if the Master Servicer has failed to
make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a Servicing
Advance by the date such Servicing Advance is required to be made (other than a
Servicing Advance that the Master Servicer determines is a Nonrecoverable
Advance), and a Responsible Officer of the Trustee receives notice thereof, the
Trustee shall make such Servicing Advance promptly, but in any event, not later
than five Business Days after notice thereof in accordance with Section 4.2,
unless the Trustee determines that such Servicing Advance, if made, would be a
Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a Servicing Advance
required to be made by the Trustee hereunder by the later of (i) the date such
Servicing Advance is required to be made and (ii) five Business Days after the
date the Trustee has received notice pursuant to subsection (b) above, that
such Servicing Advance has not been made by the Master Servicer (other than a
Servicing Advance that the Master Servicer or the Trustee has determined to be
a Nonrecoverable Advance), the Fiscal Agent will advance such Servicing
Advance, unless the Fiscal Agent determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
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The initial Trustee's failure to make any Advance required to be made by
it hereunder shall not constitute a default by the initial Trustee hereunder if
the initial Fiscal Agent makes such Advance at or before the time when the
Trustee was required to make such Advance.
(d) Pursuant to the 2001-TOP3 Pooling and Servicing Agreement, the
2001-TOP3 Master Servicer is obligated to make Advances with respect to the
Pari Passu Loan. Notwithstanding anything herein to the contrary, the Master
Servicer shall not be required to make any Advance with respect to the Pari
Passu Loan unless and until the Master Servicer has knowledge (or would have
had knowledge if it had acted in accordance with the Servicing Standard) of any
failure of the 2001-TOP3 Master Servicer, the 2001-TOP3 Trustee or the
2001-TOP3 Fiscal Agent to make an advance required under the 2001-TOP3 Pooling
and Servicing Agreement. To the extent the Master Servicer fails to make any
Advance required under this Section 4.3(d), the Trustee, pursuant to Section
4.3(b), or the Fiscal Agent, pursuant to Section 4.3(c), as applicable, shall
make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the Master Servicer determines at any time, in its sole discretion,
exercised in good faith, that any Advance previously made or proposed Advance,
if made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate delivered to the Trustee, the Paying
Agent, the Special Servicer, the Operating Adviser and the Rating Agencies by
the Business Day prior to the Distribution Date. Such Officer's Certificate
shall set forth the reasons for such determination of nonrecoverability,
together with, to the extent such information, report or document is in the
Master Servicer's possession, any related financial information such as related
income and expense statements, rent rolls, occupancy status, property
inspections and any Appraisals performed within the last 12 months on the
Mortgaged Property, and, if such reports are used by the Master Servicer to
determine that any P&I Advance or Servicing Advance, as applicable, would be a
Nonrecoverable Advance, any engineers' reports, environmental surveys, internal
final valuations or other information relevant thereto which support such
determination. If the Trustee or the Fiscal Agent, as applicable, determines at
any time that any portion of an Advance previously made or a portion of a
proposed Advance that the Trustee or the Fiscal Agent, as applicable, is
required to make pursuant to this Agreement, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Trustee or the Fiscal Agent, as
applicable, delivered to the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent and the Operating Adviser similar to the Officer's
Certificate of the Master Servicer described in the prior sentence. The Trustee
and the Fiscal Agent shall not be required to make an Advance that the Master
Servicer has previously determined to be a Nonrecoverable Advance.
Notwithstanding any other provision of this Agreement, none of the Master
Servicer, the Trustee or the Fiscal Agent shall be obligated to, nor shall it,
make any Advance or make any payment that is designated in this Agreement to be
an Advance, if it determines in its good faith judgment that such Advance or
such payment (including interest accrued thereon at the Advance Rate) would be
a Nonrecoverable Advance. The Master Servicer's determination in accordance
with the above provisions shall be conclusive and binding on the Trustee, the
Fiscal Agent, the Paying Agent and the Certificateholders.
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(b) The 2001-TOP3 Master Servicer shall be entitled to reimbursement for
Pari Passu Loan Nonrecoverable P&I Advances and Pari Passu Loan Nonrecoverable
Servicing Advances (with, in each case, any accrued and unpaid interest thereon
provided for under the 2001-TOP3 Pooling and Servicing Agreement) in the manner
set forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF OUTSTANDING ADVANCES WITH
RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance funded from the Master
Servicer's, the Trustee's or the Fiscal Agent's own funds shall accrue interest
on a daily basis, at a per annum rate equal to the Advance Rate, from and
including the date such Advance was made to but not including the date on which
such Advance has been reimbursed; provided, however, that neither the Master
Servicer nor any other party shall be entitled to interest accrued on the
amount of any P&I Advance with respect to any Mortgage Loan for the period
commencing on the date of such P&I Advance and ending on the day on which the
grace period applicable to the related Mortgagor's obligation to make the
related Scheduled Payment expires pursuant to the related Mortgage Loan
documents. For purposes of determining whether a P&I Advance is outstanding,
amounts collected with respect to a particular Mortgage Loan or REO Property
and treated as collections of principal or interest shall be applied first to
reimburse the earliest P&I Advance and then each succeeding P&I Advance to the
extent not inconsistent with Section 4.6. The Master Servicer shall use efforts
consistent with the Servicing Standard to collect (but shall have no further
obligation to collect), with respect to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer
shall be entitled to retain Late Fees and default interest paid by any
Mortgagor during a Collection Period with respect to any Mortgage Loan (other
than a Specially Serviced Mortgage Loan, as to which the Special Servicer shall
retain Late Fees and default interest with respect to such Specially Serviced
Mortgage Loan, subject to the offsets set forth below) as additional servicing
compensation only to the extent such Late Fees and default interest exceed
Advance Interest on a "pool basis" for all Mortgage Loans other than Specially
Serviced Mortgaged Loans. The Special Servicer, with respect to any Specially
Serviced Mortgage Loan, shall (i) pay from any Late Fees and default interest
collected from such Specially Serviced Mortgage Loan (a) any outstanding and
unpaid Advance Interest to the Master Servicer, the Trustee or the Fiscal
Agent, as applicable and (b) to the Trust, any losses previously incurred by
the Trust with respect to such Specially Serviced Mortgage Loan and (ii) retain
any remaining portion of such Late Fees and default interest as additional
Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan or B Note or
Specially Serviced Mortgage Loan or REO Property (including Advances later
determined to be Nonrecoverable Advances) and Advance Interest thereon shall be
reimbursed to the extent of the amounts identified to be applied therefor in
Section 5.2. The aggregate of the amounts available to repay Advances and
Advance Interest thereon pursuant to Section 5.2 collected in any Collection
Period with respect to Mortgage Loans or any B Note or Specially Serviced
Mortgage Loans or REO Property shall be an "Available Advance Reimbursement
Amount."
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(b) To the extent that Advances have been made on the Mortgage Loans, any
B Note, any Specially Serviced Mortgage Loans or any REO Mortgage Loans, the
Available Advance Reimbursement Amount with respect to any Determination Date
shall be applied to reimburse (i) the Fiscal Agent for any Advances outstanding
to the Fiscal Agent with respect to any of such Mortgage Loans, B Note,
Specially Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance
Interest owed to the Fiscal Agent with respect to such Advances and then (ii)
the Trustee for any Advances outstanding to the Trustee with respect to any of
such Mortgage Loans, B Note, Specially Serviced Mortgage Loans or REO Mortgage
Loans, plus any Advance Interest owed to the Trustee with respect to such
Advances and then (iii) the Master Servicer for any Advances outstanding to the
Master Servicer with respect to any of such Mortgage Loans, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed
to the Master Servicer with respect to such Advances. To the extent that any
Advance Interest payable to the Master Servicer, the Trustee or the Fiscal
Agent with respect to a Specially Serviced Mortgage Loan or REO Mortgage Loan
cannot be recovered from the related Mortgagor, the amount of such Advance
Interest shall be payable to the Fiscal Agent, the Trustee or the Master
Servicer, as the case may be, from amounts on deposit in the Certificate
Account (or sub-account thereof) or the Distribution Account pursuant to
Section 5.2(a) or Section 5.3(b)(ii). The Master Servicer's, the Fiscal Agent's
and the Trustee's right of reimbursement under this Agreement for Advances
shall be prior to the rights of the Certificateholders to receive any amounts
recovered with respect to such Mortgage Loans or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the Trustee and/or
the Master Servicer (in accordance with the priorities specified in the
preceding paragraph) first, from Late Fees and default interest collected from
the Mortgage Loans during the Collection Period during which the related
Advance is reimbursed, and then from Excess Liquidation Proceeds then available
prior to payment from any other amounts. Late Fees and default interest will be
applied on a "pool basis" for non-Specially Serviced Mortgage Loans and on a
"loan-by-loan basis" (under which Late Fees and default interest will be offset
against the Advance Interest arising only from that particular Specially
Serviced Mortgage Loan) for Specially Serviced Mortgage Loans, as the case may
be, to the payment of Advance Interest on all Advances on such non-Specially
Serviced Mortgage Loans or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed.
(d) Amounts applied to reimburse Advances shall first be applied to reduce
Advance Interest thereon that was not paid from amounts specified in the
preceding paragraph (c) and then to reduce the outstanding amount of such
Advances.
(e) To the extent that the Special Servicer incurs out-of-pocket expenses,
in accordance with the Servicing Standard, in connection with servicing
Specially Serviced Mortgage Loans, the Master Servicer shall reimburse the
Special Servicer for such expenditures within 30 days after receiving an
invoice and a report from the Special Servicer, subject to Section 4.4. With
respect to each Collection Period, the Special Servicer shall deliver such
invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing
Advance. In the event that the Master Servicer fails to reimburse the Special
Servicer hereunder or the Master Servicer determines that such Servicing
Advance was or, if made, would be a Nonrecoverable Advance
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and the Master Servicer does not make such payment, the Special Servicer shall
notify the Master Servicer and the Paying Agent in writing of such nonpayment
and the amount payable to the Special Servicer and shall be entitled to receive
reimbursement from the Trust as an Additional Trust Expense. The Master
Servicer, the Paying Agent and the Trustee shall have no obligation to verify
the amount payable to the Special Servicer pursuant to this Section 4.6(e) and
circumstances surrounding the notice delivered by the Special Servicer pursuant
to this Section 4.6(e).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent Termination
Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the Paying Agent when
due any required Advances; or
(ii) A decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Fiscal Agent and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or
relating to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(v) The long-term unsecured debt of the Fiscal Agent is rated below
AA- by S&P or Aa2 by Xxxxx'x; or
(vi) With respect to the initial Fiscal Agent, LaSalle Bank National
Association resigns or is removed pursuant to Section 7.6 hereof.
SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of termination given to the
Fiscal Agent pursuant to Section 7.6(c), all authority, power and rights of the
Fiscal Agent under this Agreement, whether with respect to the Mortgage Loans
or otherwise, shall terminate and a successor Fiscal Agent, if necessary, shall
be appointed by the Trustee, with the consent of the Depositor; provided that
the successor Fiscal Agent meets the eligibility requirements set forth in
Section 7.5. The Fiscal Agent agrees to cooperate with the Trustee in effecting
the termination of the Fiscal Agent's responsibilities and rights hereunder as
Fiscal Agent.
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(b) Notwithstanding the termination of its activities as Fiscal Agent, the
terminated Fiscal Agent shall continue to be entitled to reimbursement to the
extent provided in Section 4.6 but only to the extent such reimbursement
relates to the period up to and including the date on which the Fiscal Agent's
termination is effective. The Fiscal Agent shall be reimbursed for all amounts
owed to it hereunder on or prior to the effective date of its termination from
amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any Person into which
the Fiscal Agent may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Fiscal Agent shall be a party, or any Person succeeding to the business of the
Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding; provided that
(i) the successor to the Fiscal Agent or resulting Person shall have a net
worth of not less than $100,000,000, (ii) such successor or resulting Person
shall be satisfactory to the Trustee, (iii) such successor or resulting Person
shall execute and deliver to the Trustee an agreement, in form and substance
satisfactory to the Trustee, which contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to
be performed or observed by the Fiscal Agent under this Agreement from and
after the date of such agreement, (iv) the successor or surviving entity meets
the eligibility requirements set forth in Section 7.5, and (v) the Fiscal Agent
shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel
acceptable to the Trustee (which opinion shall be at the expense of the Fiscal
Agent) stating that all conditions precedent to such action under this Section
4.9 have been completed and such action is permitted by and complies with the
terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND OTHERS.
Neither the Fiscal Agent nor any of the directors, officers, employees, agents
or Controlling Persons of the Fiscal Agent shall be under any liability to the
Certificateholders, the Depositor or the Trustee for any action taken or for
refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent
of the Fiscal Agent may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder. The Fiscal Agent shall not be under any obligation to appear
in, prosecute or defend any legal action which is not incidental to its
obligations under this Agreement. In such event, all legal expenses and costs
of such action shall be expenses and costs of the Trust, and the Fiscal Agent
shall be entitled to be reimbursed therefor as Servicing Advances as provided
by this Agreement. The provisions of this Section 4.10 shall survive the
resignation or removal of the Fiscal Agent and the termination of this
Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal Agent and each of
its directors, officers, employees, agents and Controlling Persons shall be
indemnified by the Trust and held harmless against any and all claims, losses,
penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, liabilities, fees and expenses incurred in connection with any
legal action relating to this Agreement other than any loss, liability or
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expense incurred by reason of the Fiscal Agent's willful misfeasance, bad faith
or negligence in the performance of duties hereunder. The Depositor shall
indemnify and hold harmless the Fiscal Agent, its directors, officers,
employees, agents and Controlling Persons from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, Preliminary Prospectus Supplement, Final
Prospectus Supplement or Prospectus or arises out of, or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading and shall reimburse
the Fiscal Agent, its directors, officers, employees, agents or Controlling
Person for any legal and other expenses reasonably incurred by the Fiscal Agent
or any such director, officer, employee, agent or Controlling Person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action. The Fiscal Agent shall immediately notify the
Depositor, the Sellers, the Paying Agent, the Special Servicer, the Master
Servicer and the Trustee if a claim is made by a third party with respect to
this Section 4.11 entitling the Fiscal Agent, its directors, officers,
employees, agents or Controlling Person to indemnification hereunder, whereupon
the Depositor shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Fiscal Agent) and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy any
judgment or decree which may be entered against it or them in respect of such
claim. Any failure to so notify the Depositor shall not affect any rights the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
may have to indemnification under this Section 4.11, unless the Depositor's
defense of such claim is materially prejudiced thereby. The indemnification
provided herein shall survive the termination of this Agreement and the
resignation or removal of the Fiscal Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer shall open, or
cause to be opened, and shall thereafter maintain, or cause to be maintained, a
separate account or accounts, which accounts must be Eligible Accounts, in the
name of "Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle
Bank National Association, as Trustee for the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4" (the "Certificate Account"). On or prior to the
Closing Date, the Master Servicer shall open, or cause to be opened, and shall
maintain, or cause to be maintained an additional separate account or accounts
in the name of "Xxxxx Fargo Bank, National Association, as Master Servicer for
LaSalle Bank National Association, as Trustee for the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4" (the "Interest Reserve Account").
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(b) On or prior to the date the Master Servicer shall first deposit funds
in a Certificate Account or the Interest Reserve Account, as the case may be,
the Master Servicer shall give to the Paying Agent and the Trustee prior
written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause the
depository institution holding the Certificate Account and the Interest Reserve
Account to hold such account in the name of the Master Servicer as provided in
Section 5.1(a), subject to the Master Servicer's (or its Sub-Servicer's) right
to direct payments and investments and its rights of withdrawal under this
Agreement.
(c) The Master Servicer shall deposit, or cause to be deposited, into the
Certificate Account on the Business Day following receipt (or, in the case of
an inadvertent failure to make such deposit on the Business Day following
receipt, within 3 Business Days of discovery of such failure and in the case of
unscheduled remittances of principal or interest, on the Business Day following
identification of the proper application of such amounts), the following
amounts received by it (including amounts remitted to the Master Servicer by
the Special Servicer from an REO Account pursuant to Section 9.14), other than
in respect of interest and principal on the Mortgage Loans or any B Note due on
or before the Cut-Off Date which shall be remitted to the Depositor (provided
that the Master Servicer (I) may retain amounts otherwise payable to the Master
Servicer as provided in Section 5.2(a) rather than deposit them into the
Certificate Account, (II) shall, rather than deposit them in the Certificate
Account, directly remit to the Primary Servicers the applicable Primary
Servicing Fees payable as provided in Section 5.2(a)(iv)(unless already
retained by the applicable Primary Servicer), and (III) shall, rather than
deposit them in the Certificate Account, directly remit the Excess Servicing
Fees to the holders thereof as provided in Section 5.2(a)(iv))(unless already
retained by the applicable holder of the excess servicing rights)):
(A) Principal: all payments on account of principal, including
Principal Prepayments, the principal component of Scheduled Payments, and
any Late Collections in respect thereof, on the Mortgage Loans and any B
Note;
(B) Interest: subject to subsection (d) hereof, all payments on
account of interest (minus any portion of any such payment that is
allocable to the period prior to the Cut-Off Date which shall be remitted
to the Depositor and excluding Interest Reserve Amounts to be deposited in
the Interest Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds with respect to
the Mortgage Loans and any B Note;
(D) Insurance Proceeds: all Insurance Proceeds other than proceeds to
be applied to the restoration or repair of the property subject to the
related Mortgage or released to the related Mortgagor in accordance with
the Servicing Standard, which proceeds shall be deposited by the Master
Servicer into an Escrow Account and not deposited in the Certificate
Account;
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(E) Condemnation Proceeds: all Condemnation Proceeds other than
proceeds to be applied to the restoration or repair of the property
subject to the related Mortgage or released to the related Mortgagor in
accordance with the Servicing Standard, which proceeds shall be deposited
by the Master Servicer into an Escrow Account and not deposited in the
Certificate Account;
(F) REO Income: all REO Income received from the Special Servicer;
(G) Investment Losses: any amounts required to be deposited by the
Master Servicer pursuant to Section 5.1(e) in connection with losses
realized on Eligible Investments with respect to funds held in the
Certificate Account and amounts required to be deposited by the Special
Servicer pursuant to Section 9.14(b) in connection with losses realized on
Eligible Investments with respect to funds held in the REO Account;
(H) Advances: all P&I Advances unless made directly to the
Distribution Account; and
(I) Other: all other amounts, including Prepayment Premiums, required
to deposited in the Certificate Account pursuant to this Agreement,
including Purchase Proceeds of any Mortgage Loans repurchased by a Seller
or substitution shortfall amounts (as described in the fifth paragraph of
Section 2.3(a)) paid by a Seller in connection with the substitution of
any Qualifying Substitute Mortgage Loans, and with respect to any B Note,
all other amounts received pursuant to the cure and purchase rights set
forth in the applicable Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer shall establish
and maintain one or more sub-accounts of the Certificate Account (each an "A/B
Loan Custodial Account") into which the Master Servicer shall deposit any
amounts described above that are required to be paid to the holder of the
related B Note pursuant to the terms of the related Intercreditor Agreement, in
each case on the same day as the deposit thereof into the Certificate Account.
Any A/B Loan Custodial Account shall be held in trust for the benefit of the
holder of the related B Note and shall not be part of any REMIC Pool.
Remittances from any REO Account to the Master Servicer for deposit in the
Certificate Account shall be made by the Special Servicer no later than the
Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution Date occurring
in January (other than in any leap year) and February of each year, shall
deposit in the Interest Reserve Account in respect of each Interest Reserve
Loan, an amount equal to one day's interest at the related REMIC I Net Mortgage
Rate on the Scheduled Principal Balance of such Mortgage Loan as of the Due
Date in the month in which such Distribution Date occurs, to the extent a
Scheduled Payment or P&I Advance is timely made in respect thereof for such Due
Date (all amounts so deposited in any consecutive January and February in
respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be
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deposited into the Interest Reserve Account, the REMIC I Net Mortgage Rate used
in this calculation for those months will be calculated without regard to any
adjustment for Interest Reserve Amounts or the interest accrual basis as
described in the proviso to the definition of "REMIC I Net Mortgage Rate."
(e) Funds in the Certificate Account (including any A/B Loan Custodial
Accounts) and Interest Reserve Account may be invested and, if invested, shall
be invested by, and at the risk of, the Master Servicer in Eligible Investments
selected by the Master Servicer which shall mature, unless payable on demand,
not later than the Business Day immediately preceding the next Master Servicer
Remittance Date, and any such Eligible Investment shall not be sold or disposed
of prior to its maturity unless payable on demand. All such Eligible
Investments shall be made in the name of "LaSalle Bank National Association, as
Trustee for the Holders of the Bear Xxxxxxx Commercial Mortgage Securities
Inc., Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4 and the
holder of any related B Note as their interests may appear." None of the
Depositor, the Mortgagors, the Paying Agent or the Trustee shall be liable for
any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such investment
shall be paid to the Master Servicer as additional servicing compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Master Servicer which shall deposit the amount of such loss (to the
extent not offset by income from other investments) in the Certificate Account
(and, solely to the extent that the loss is of an amount credited to an A/B
Loan Custodial Account, deposit to the related A/B Loan Custodial Account) or
Interest Reserve Account, as the case may be, out of its own funds immediately
as realized. If the Master Servicer deposits in or transfers to any Certificate
Account, any A/B Loan Custodial Account or Interest Reserve Account, as the
case may be, any amount not required to be deposited therein or transferred
thereto, it may at any time withdraw such amount or retransfer such amount from
the Certificate Account, such A/B Loan Custodial Account or Interest Reserve
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(f) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Eligible Investment, or
if a default occurs in any other performance required under any Eligible
Investment, the Paying Agent on behalf of and at the direction of the Trustee
may take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings; provided, however, that if the Master Servicer shall have
deposited in the Certificate Account, A/B Loan Custodial Account and Interest
Reserve Account an amount equal to all amounts due under any such Eligible
Investment (net of anticipated income or earnings thereon that would have been
payable to the Master Servicer as additional servicing compensation) the Master
Servicer shall have the sole right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment by the Mortgagor
to the Master Servicer of amounts to be used for payment of Escrow Amounts for
the account of the Mortgagor. The Master Servicer shall deal with these amounts
in accordance with the Servicing Standard, the terms of the related Mortgage
Loans and Section 8.3(e) hereof, and the Primary Servicers will be entitled to
hold any Escrow Accounts relating to the Mortgage Loans
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that they service in accordance with the requirements set forth in Section
8.3(e). Within 20 days following the first anniversary of the Closing Date, the
Master Servicer shall deliver to the Trustee, the Paying Agent and the
Operating Adviser, for each Mortgage Loan set forth on Schedule VII hereto, a
brief statement as to the status of the work or project based on the most
recent information provided by the Mortgagor. Schedule VII sets forth those
Mortgage Loans as to which an upfront reserve was collected at closing in an
amount in excess of $75,000 with respect to specific immediate engineering
work, completion of additional construction, environmental remediation or
similar one-time projects (but not with respect to escrow accounts maintained
for ongoing obligations, such as real estate taxes, insurance premiums, ongoing
property maintenance, replacements and capital improvements or debt service).
If the work or project is not complete in accordance with the requirements of
the escrow, the Master Servicer and the Special Servicer (which shall itself
consult with the Operating Adviser) will consult with each other as to whether
there exists a material default under the underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule X, as to which
the Scheduled Payment is due in a calendar month on a Due Date (including any
grace period) that may occur after the end of the Collection Period ending in
such calendar month, the Master Servicer shall, unless the Scheduled Payment is
received before the end of such Collection Period, make a P&I Advance by
deposit to the Certificate Account on the Master Servicer Remittance Date in an
amount equal to the "Scheduled Payment," and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment shall be deemed to have been received in such Collection
Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT AND INTEREST
RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make withdrawals from
the Certificate Account and remit them by wire transfer prior to 2:00 p.m., New
York City time, on the related Master Servicer Remittance Date in immediately
available funds to the account specified in this Section or otherwise (w) to
such account as it shall determine from time to time of amounts payable to the
Master Servicer from the Certificate Account (and, insofar as they relate to a
B Note, from the related A/B Loan Custodial Account) pursuant to clauses (i),
(ii), (iii), (iv), (vi), (viii) and (ix) below; (x) to the account specified in
writing by the Paying Agent from time to time of amounts payable to the Paying
Agent and the Trustee from the Certificate Account (and, insofar as they relate
to a B Note, from the related A/B Loan Custodial Account) pursuant to clauses
(ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (y) to the Special
Servicer from time to time of amounts payable to the Special Servicer from such
Certificate Account (and, insofar as they relate to a B Note, from the related
A/B Loan Custodial Account) pursuant to clauses (i), (iv), (vi), (vii) and (ix)
below of the following amounts, from the amounts specified for the following
purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late Fees (in
excess of amounts used to pay Advance Interest) relating to Mortgage Loans
or B Notes which are not Specially Serviced Mortgage Loans, Modification
Fees relating to Mortgage Loans or B Notes which are not Specially
Serviced Mortgage Loans as provided in Section 8.18, 50% of any assumption
fees payable under Section 8.7(a) or 8.7(b), 100% of any extension fees
payable
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under Section 8.10 or other fees payable to the Master Servicer hereunder
and (B) directly to the Special Servicer, 50% of any assumption fees as
provided in Section 8.7(a), 50% of any assumption fees as provided in
Section 8.7(b), all assumption fees relating to Specially Serviced
Mortgage Loans and Late Fees (in excess of Advance Interest which the
Master Servicer shall retain), Modification Fees and other fees collected
on Specially Serviced Mortgage Loans, in each case to the extent provided
for herein from funds paid by the applicable Mortgagor, and Late Fees
collected on Specially Serviced Mortgage Loans to the extent the Special
Servicer is entitled to such Late Fees under Section 4.5 (provided that
the fees specified in this clause (i) shall not be payable with respect to
the Pari Passu Loan);
(ii) Servicing Advances (including amounts later determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, subject
to clause (B) below, to reimburse or pay to the Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) prior to a
Final Recovery Determination or determination in accordance with Section
4.4 that any Advance is a Nonrecoverable Advance, Servicing Advances on
the related Mortgage Loan and any B Note from payments made by the related
Mortgagor of the amounts to which a Servicing Advance relates or from REO
Income from the related REO Property or from Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds or Purchase Proceeds and, to the
extent that a Servicing Advance has been or is being reimbursed, any
related Advance Interest thereon first, from Late Fees and default
interest collected during the Collection Period during which such Advance
is reimbursed, and then from Excess Liquidation Proceeds then available
and then from any other amounts on deposit in the Certificate Account;
provided that, Late Fees and default interest will be applied on a "pool
basis" for non-Specially Serviced Mortgage Loans (and any B Note) and on a
"loan-by-loan basis" (under which Late Fees and default interest will be
offset against the Advance Interest arising only from the particular
Specially Serviced Mortgage Loan) for Specially Serviced Mortgage Loans,
as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans (and any B Note) or such
Specially Serviced Mortgage Loans, as the case may be, then being
reimbursed or (y) after a Final Recovery Determination or determination
that any Servicing Advance on the related Mortgage Loan or any B Note is a
Nonrecoverable Advance, any Servicing Advances made on the related
Mortgage Loan, B Note or REO Property from any funds on deposit in the
Certificate Account (regardless of whether such amount was recovered from
the applicable Mortgage Loan or REO Property) and pay Advance Interest
thereon first, from Late Fees and default interest collected during the
Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "pool basis" for all non-Specially
Serviced Mortgage Loans (and any B Note) and on a "loan-by-loan basis", as
described above, for all Specially Serviced Mortgage Loans, as the case
may be, to the payment of Advance Interest on all Advances on such
non-Specially Serviced Mortgage Loans (and any B Note) or such Specially
Serviced Mortgage Loans, as the case may be, then being reimbursed), then
from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the Certificate Account and (B) in the case of the
Pari Passu Loan and from any funds on deposit in the Certificate Account,
to reimburse the 2001-TOP3 Master Servicer, the 2001-TOP3 Trustee and the
2001-TOP3 Fiscal Agent for Pari Passu Loan Nonrecoverable Servicing
Advances and any accrued and unpaid interest thereon provided for under
the 2001-TOP3 Pooling and Servicing Agreement;
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(iii) P&I Advances (including amounts later to be determined to be
Nonrecoverable Advances): (A) in the case of all Mortgage Loans, subject
to clause (B) below, to reimburse or pay to the Master Servicer, the
Trustee and the Fiscal Agent, pursuant to Section 4.6, (x) if prior to a
Final Recovery Determination or determination that any Advance is a
Nonrecoverable Advance, any P&I Advances from Late Collections made by the
Mortgagor of the amounts to which a P&I Advance relates, or REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that
a P&I Advance has been or is being reimbursed, any related Advance
Interest thereon, first, from Late Fees and default interest collected
during the Collection Period during which such Advance is reimbursed, and
then from Excess Liquidation Proceeds then available and then from any
other amounts on deposit in the Certificate Account; provided that, Late
Fees and default interest will be applied on a "pool basis" for
non-Specially Serviced Mortgage Loans and on a "loan-by-loan basis" (under
which Late Fees and default interest will be offset against the Advance
Interest arising only from the particular Specially Serviced Mortgage
Loan) for Specially Serviced Mortgage Loans or (y) if after a Final
Recovery Determination or determination in accordance with Section 4.4
that any P&I Advance on the related Mortgage Loan is a Nonrecoverable
Advance, for any Mortgage Loan, any P&I Advances made on the related
Mortgage Loan or REO Property from any funds on deposit in the Certificate
Account (regardless of whether such amount was recovered from the
applicable Mortgage Loan or REO Property) and any Advance Interest
thereon, first, from Late Fees and default interest collected during the
Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "pool basis" for all non-Specially
Serviced Mortgage Loans and on a "loan-by-loan basis", as described above,
for all Specially Serviced Mortgage Loans, as the case may be, to the
payment of Advance Interest on all Advances on such non-Specially Serviced
Mortgage Loans or such Specially Serviced Mortgage Loans, as the case may
be, then being reimbursed), then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the Certificate
Account and (B) in the case of the Pari Passu Loan and from any funds on
deposit in the Certificate Account, to reimburse the 2001-TOP3 Master
Servicer, the 2001-TOP3 Trustee and the 2001-TOP3 Fiscal Agent for Pari
Passu Loan Nonrecoverable P&I Advances and any accrued and unpaid interest
thereon provided for under the 2001-TOP3 Pooling and Servicing Agreement;
(iv) Servicing Fees and Special Servicer Compensation: to pay to
itself the Master Servicing Fee, subject to reduction for any Compensating
Interest, to pay to the Special Servicer the Special Servicing Fee and the
Work-Out Fee, to pay to the Primary Servicers (or the Master Servicer) the
Primary Servicing Fees, and to pay to the parties entitled thereto the
Excess Servicing Fees (to the extent not previously retained by any of
such parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the Distribution
Account for withdrawal by the Paying Agent, the Paying Agent Fee and the
Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled thereto any
amounts specified herein to be Additional Trust Expenses (at the time set
forth herein or in the definition thereof), the payment of which is not
more specifically provided for in this Agreement; provided that the
Depositor shall not be entitled to receive reimbursement for performing
its duties under this Agreement;
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(vii) Liquidation Fees: upon the occurrence of a Final Recovery
Determination to pay to the Special Servicer from the Certificate Account,
the amount certified by the Special Servicer equal to the Liquidation Fee,
to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain realized
on the investment of funds deposited in such Certificate Account
(including any A/B Loan Custodial Accounts);
(ix) Prepayment Interest Excesses: to pay to the Master Servicer the
amount of the aggregate Prepayment Interest Excesses relating to Mortgage
Loans which are not Specially Serviced Mortgage Loans (to the extent not
offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or
from modifications to Specially Serviced Mortgage Loans), to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage
Loans.
(x) Correction of Errors: to withdraw funds deposited in the
Certificate Account in error;
(xi) Distribution Account: to make payment on each Master Servicer
Remittance Date of the remaining amounts in the Certificate Account
(including Excess Interest) to the Distribution Account (or in the case of
any Excess Interest, deposit to the Excess Interest Sub-account under
Section 5.3(b)) other than amounts held for payment in future periods or
pursuant to clause (xii) below, and offset by the amount of any Net Swap
Payment, as set forth in Section 8.30(b) and Section 6.12;
(xii) Reserve Account: to make payment on each Master Servicer
Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
(xiii) Clear and Terminate: to clear and terminate the Certificate
Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
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(A) the Master Servicer shall be entitled to make transfers from time to
time, from the related A/B Loan Custodial Account to the portion of the
Certificate Account that does not constitute the A/B Loan Custodial
Account, of amounts necessary for the payments or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii), (iv), (v), (vi),
(vii), (viii), (ix) and (xii) above, but only insofar as the payment or
reimbursement described therein arises from or is related solely to such
A/B Mortgage Loan and is allocable to the A/B Mortgage Loan pursuant to
this Agreement or the Intercreditor Agreement, and the Master Servicer
shall also be entitled to make transfers from time to time, from the
related A/B Loan Custodial Account to the portion of the Certificate
Account that does not constitute the A/B Loan Custodial Account, of
amounts transferred to
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such related A/B Loan Custodial Account in error, and amounts necessary
for the clearing and termination of the Certificate Account pursuant to
Section 8.29;
(B) the Master Servicer shall be entitled to make transfers from time to
time, from the related A/B Loan Custodial Account to the portion of the
Certificate Account that does not constitute the A/B Loan Custodial
Account, of amounts not otherwise described in clause (A) above to which
the holder of an A Note is entitled under the A/B Mortgage Loan and the
related Intercreditor Agreement (including in respect of interest,
principal and Prepayment Premiums in respect of the A Note (whether or not
by operation of any provision of the related Intercreditor Agreement that
entitles the holder of such A Note to receive remittances in amounts
calculated without regard to any modification, waiver or amendment of the
economic terms of such A Note)); and
(C) the Master Servicer shall on each Master Service Remittance Date remit
to the holder of the related B Note all amounts on deposit in such A/B
Loan Custodial Account (net of amounts permitted or required to be
transferred therefrom as described in clauses (A) and/or (B) above), to
the extent that the holder of such B Note is entitled thereto under the
related Intercreditor Agreement (including by way of the operation of any
provision of the related Intercreditor Agreement that entitles the holder
of the B Note to reimbursement of cure payments made by it).
Expenses incurred with respect to an A/B Mortgage Loan shall be allocated
in accordance with the Intercreditor Agreement. The Master Servicer shall keep
and maintain a separate accounting for each Mortgage Loan and B Note for the
purpose of justifying any withdrawal or transfer from the Certificate Account
and any A/B Loan Custodial Account. The Master Servicer shall not be permitted
to withdraw any funds from the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account unless there are no remaining funds
in the related A/B Loan Custodial Account available and required to be paid in
accordance with the related Intercreditor Agreement.
(b) Scheduled Payments due in a Collection Period succeeding the
Collection Period relating to such Master Servicer Remittance Date, Principal
Prepayments received after the related Collection Period, or other amounts not
distributable on the related Distribution Date, shall be held in the
Certificate Account (or sub-account thereof) and shall be distributed on the
Master Servicer Remittance Date or Dates to which such succeeding Collection
Period or Periods relate, provided, however, that as to the Mortgage Loans set
forth on Schedule X, for which the Scheduled Payment due each month is due on a
Due Date (including any grace period) that may occur after the end of the
Collection Period in such month, sums received by the Master Servicer with
respect to such Scheduled Payment but after the end of such Collection Period
shall be applied by the Master Servicer to reimburse any related P&I Advance
made pursuant to Section 5.1(h), and the Master Servicer shall remit to the
Distribution Account on any Master Servicer Remittance Date for a Collection
Period any Principal Prepayments received after the end of such Collection
Period but no later than the second Business Day immediately preceding such
Master Servicer Remittance Date on the Mortgage Loans set forth on Schedule X.
For purposes of the definition of "Available Distribution Amount" and
"Principal Distribution
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Amount," the Scheduled Payments and Principal Prepayments referred to in the
preceding proviso shall be deemed to have been collected in the prior
Collection Period.
(c) On each Master Servicer Remittance Date in March of every year
commencing in March 2002, the Master Servicer shall withdraw all amounts then
in the Interest Reserve Account and deposit such amounts into the Distribution
Account.
SECTION 5.3 DISTRIBUTION ACCOUNT, RESERVE ACCOUNT AND FLOATING RATE
ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall establish (with
respect to clause (i), on or prior to the Closing Date, and with respect to
clause (ii), on or prior to the date the Paying Agent determines is necessary)
and maintain in its name, on behalf of the Trustee, (i) an account (the
"Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank Minnesota, National Association, as Paying Agent on behalf of LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4, Distribution Account" and (ii) an
account (the "Reserve Account") to be held in trust for the benefit of the
holders of interests in the Trust until disbursed pursuant to the terms of this
Agreement, titled: "Xxxxx Fargo Bank Minnesota, National Association, as Paying
Agent on behalf of LaSalle Bank National Association, as Trustee, in trust for
the benefit of the Holders of Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4, Reserve
Account." The Distribution Account and the Reserve Account shall be Eligible
Accounts. Funds in the Distribution Account and in the Reserve Account shall
not be invested. The Distribution Account and Reserve Account shall be held
separate and apart from and shall not be commingled with any other monies
including, without limitation, other monies of the Paying Agent held under this
Agreement.
(b) The Paying Agent shall deposit into the Distribution Account or the
Reserve Account, as applicable, on the Business Day received all moneys
remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. The Paying Agent shall deposit amounts
constituting collections of Excess Interest on the Mortgage Loans into the
Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the Certificate Account and collected during the
related Collection Period as provided in clauses (v) and (xi) of Section 5.2(a)
and the P&I Advance Amount, and, on the Master Servicer Remittance Date
occurring in March of any year, commencing in March 2002, amounts held in the
Interest Reserve Account. The Paying Agent shall make withdrawals from the
Distribution Account (including the Excess Interest Sub-account) and the
Reserve Account only for the following purposes:
(i) to withdraw amounts deposited in the Distribution Account in
error and pay such amounts to the Persons entitled thereto;
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(ii) to pay any amounts payable to the Master Servicer, the Primary
Servicers, the Special Servicer, the Fiscal Agent and the Trustee
(including the Trustee's Fee (other than that portion thereof, that
constitutes the Paying Agent's Fee)) and the Paying Agent (including the
Paying Agent Fee), or other expenses or other amounts permitted to be paid
hereunder and not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders (other than the
Class A-2 Certificateholders) pursuant to Section 6.5, to make
distributions to the Class A-2 Grantor Trust in respect of the Class A-2
Regular Interest, with a credit for the amount of the Net Swap Payment
deemed distributed by the Paying Agent to the Master Servicer's Floating
Rate Account pursuant to Sections 5.3(c) and 6.12; and
(iv) to clear and terminate the Distribution Account pursuant to
Section 10.2.
(c) On or before the Closing Date, the Paying Agent shall (and, with
respect to Net Swap Payments, the Master Servicer shall) establish and maintain
a separate Floating Rate Account for the benefit of the Class A-2
Certificateholders. The Floating Rate Account established by the Master
Servicer shall be described herein as the "Master Servicer's Floating Rate
Account." The Floating Rate Account shall (i) at all times be an Eligible
Account, (ii) be entitled: "Xxxxx Fargo Bank Minnesota, National Association,
as Paying Agent on behalf of LaSalle Bank National Association, as Trustee, in
trust for Holders of the Bear Xxxxxxx Commercial Mortgage Securities Trust
2001-TOP4, Floating Rate Account, Class A-2" and (iii) relate solely to the
Class A-2 Certificates, and the Paying Agent (and, with respect to any Master
Servicer's Floating Rate Account, the Master Servicer) shall have the exclusive
right to withdraw funds therefrom. The Paying Agent shall deposit into the
Floating Rate Account (other than a Master Servicer's Floating Rate Account) on
or prior to each Distribution Date an amount equal to those amounts payable
under the related Class A-2 Regular Interest (net of any payments to the Swap
Counterparty made pursuant to Section 8.30(b) hereof) pursuant to Article VI
hereof and shall deposit into the Floating Rate Account (other than a Master
Servicer's Floating Rate Account) all amounts received on the Swap Contract in
respect of such Distribution Date. With respect to any Master Servicer's
Floating Rate Account established by the Servicer on behalf of the Trustee, the
Paying Agent, pursuant to Section 6.12, shall be deemed to have transferred,
and to have directed the Master Servicer to deposit, into the Master Servicer's
Floating Rate Account on or prior to each Master Servicer Remittance Date an
amount equal to that portion payable under the Class A-2 Regular Interest
pursuant to Article VI hereof that is equal to the Net Swap Payments due to the
Swap Counterparty under the Swap Contract. Amounts in the Floating Rate Account
shall be held uninvested. The Paying Agent shall make withdrawals from the
Floating Rate Account under its control in the following order of priority and
only for the following purposes:
(i) to withdraw amounts deposited in the Floating Rate Account in
error and pay such amounts to the Persons entitled thereto;
(ii) to make distributions to the Holders of the Class A-2
Certificates pursuant to Section 6.12;
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(iii) to withdraw termination payments to purchase a replacement Swap
Contract, if applicable; and
(iv) to clear and terminate the Floating Rate Account pursuant to
Section 9.1.
(d) Pursuant to Section 8.30(b), on the second Business Day prior to each
Distribution Date the Paying Agent shall notify the Master Servicer of the
amount of any payments from the Master Servicer's Floating Rate Account to be
made to the Swap Counterparty on or before 3:00 p.m. New York time on each
Master Servicer Remittance Date, and the Master Servicer shall cause such
payments to be made.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on information provided
in monthly reports prepared by the Master Servicer and the Special Servicer and
delivered to the Paying Agent by the Master Servicer (no later than 1:00 p.m.,
New York time on the Report Date), the Paying Agent shall make available to any
interested party via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's Website"), (i) the Monthly
Certificateholder's Report (substantially in the form of Exhibit M), (ii) a
report containing information regarding the Mortgage Loans as of the end of the
related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report
may be included as part of the Monthly Certificateholders Report, (iii) the
Loan Periodic Update File, Loan Setup File, Bond Level File and the Collateral
Summary File, (iv) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (v) as a convenience for
interested parties (and not in furtherance of the distribution thereof under
the securities laws), the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on information
provided in monthly reports prepared by the Master Servicer and the Special
Servicer and delivered to the Paying Agent in accordance herewith, the Paying
Agent shall make available via the Paying Agent's Website, on a restricted
basis, the Restricted Servicer Reports (including the Property File on or prior
to each Distribution Date, commencing in February 2002). The Paying Agent shall
provide access to the Restricted Servicer Reports, upon request, to each
Certificateholder, each of the parties to this Agreement, each of the Rating
Agencies, each of the Underwriters, the Operating Adviser, the Placement Agents
and any Certificate Owner upon receipt (which may be in electronic form) from
such person of an Investor Certificate in the form of Exhibit Y, and any other
person upon the direction of the Depositor, the Placement Agents or any
Underwriter. For assistance with the above-mentioned Paying Agent services,
Certificateholders or any party hereto may initially call 000-000-0000.
The Paying Agent makes no representations or warranties as to the accuracy
or completeness of any report, document or other information made available on
the Paying Agent's Website and assumes no responsibility therefor. The Paying
Agent shall be entitled to conclusively rely on any information provided to it
by the Master Servicer or the Special
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Servicer and shall have no obligation to verify such information and the Paying
Agent may disclaim responsibility for any information distributed by the Paying
Agent for which it is not the original source. In connection with providing
access to the Paying Agent's Website, the Paying Agent, may require
registration and the acceptance of a disclaimer. None of the Master Servicer,
the Special Servicer, any Primary Servicer or the Paying Agent shall be liable
for the dissemination of information in accordance with this Agreement;
provided that this sentence shall not in any way limit the liability the Paying
Agent may otherwise have in the performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request, if required by
federal regulation, of any Certificateholder (or holder of a B Note) that is a
savings association, bank, or insurance company, the Paying Agent shall provide
(to the extent in its possession) to each such Certificateholder (or such
holder of a B Note) such reports and access to non-privileged information and
documentation regarding the Mortgage Loans and the Certificates as such
Certificateholder (or such holder of a B Note) may reasonably deem necessary to
comply with applicable regulations of the Office of Thrift Supervision or
successor or other regulatory authorities with respect to investment in the
Certificates; provided that the Paying Agent shall be entitled to be reimbursed
by such Certificateholder (or such holder of a B Note) for the Paying Agent's
actual expenses incurred in providing such reports and access. The holder of a
B Note shall be entitled to receive information and documentation only with
respect to its related A/B Mortgage Loan pursuant hereto.
(c) Upon written request, the Paying Agent shall send to each Person who
at any time during the calendar year was a Certificateholder of record,
customary information as the Paying Agent xxxxx xxx be necessary or desirable
for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the Depositor, the
Master Servicer, the Special Servicer, the Primary Servicers, the Trustee, the
Fiscal Agent, the Operating Adviser, any Certificateholder, prospective
Certificate Owner or any Person reasonably designated by any Placement Agent,
or any Underwriter upon reasonable notice and during normal business hours,
reasonable access to all relevant, non-attorney privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
other relevant matters relating to this Agreement, and access to Responsible
Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or electronic formats
of such information if reasonably available in lieu of paper copies) of any and
all of the foregoing items of this Section 5.4 shall be made available by the
Paying Agent upon request; provided, however, that the Paying Agent shall be
permitted to require payment by the requesting party (other than the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the Fiscal Agent, the
Operating Adviser, any Placement Agent or any Underwriter or any Rating Agency)
of a sum sufficient to cover the reasonable expenses actually incurred by the
Paying Agent of providing access or copies (including electronic or digital
copies) of any such information requested in accordance with the preceding
sentence.
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(g) The Paying Agent shall make available at its Corporate Trust Office
(either in physical or electronic form), during normal business hours, upon
reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any Prospective Investor, the Underwriters, each Rating
Agency, the Special Servicer, the Depositor, and solely as with respect to any
A/B Mortgage Loan, the holder of the B Note, originals or copies of, among
other things, the following items: (i) the most recent property inspection
reports in the possession of the Trustee in respect of each Mortgaged Property
and REO Property, (ii) the most recent Mortgaged Property/REO Property annual
operating statement and rent roll, if any, collected or otherwise obtained by
or on behalf of the Master Servicer or the Special Servicer and delivered to
the Paying Agent, (iii) any Phase I Environmental Report or engineering report
prepared or appraisals performed in respect of each Mortgaged Property
provided, however, that the Paying Agent shall be permitted to require payment
by the requesting party (other than either Rating Agency) of a sum sufficient
to cover the reasonable expenses actually incurred by the Trustee of providing
access or copies (including electronic or digital copies) of any such
information reasonably requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent shall perform all
reporting and other tax compliance duties that are the responsibility of each
REMIC Pool, the Class N Grantor Trust and the Class A-2 Grantor Trust under the
Code, REMIC Provisions, or other compliance guidance issued by the Internal
Revenue Service or any state or local taxing authority. Consistent with this
Pooling and Servicing Agreement, the Paying Agent shall provide or cause to be
provided (i) to the United States Treasury or other Persons (including, but not
limited to, the Transferor of a Class R-I, Class R-II or Class R-III
Certificate, to a Disqualified Organization or to an agent that has acquired a
Class R-I, Class R-II or Class R-III Certificate on behalf of a Disqualified
Organization) such information as is necessary for the application of any tax
relating to the transfer of a Class R-I, Class R-II or Class R-III Certificate
to any Disqualified Organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions. The
Master Servicer shall on a timely basis provide the Paying Agent with such
information concerning the Mortgage Loans as is necessary for the preparation
of the tax or information returns or receipts of each REMIC Pool as the Paying
Agent may reasonably request from time to time. The Special Servicer is
required to provide to the Master Servicer all information in its possession
with respect to the Specially Serviced Mortgage Loans in order for the Master
Servicer to comply with its obligations under this Section 5.5. The Paying
Agent shall be entitled to conclusively rely on any such information provided
to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify any such information.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section 10.2(a),
respecting the final distribution on the Certificates, on each Distribution
Date, the Paying Agent shall (1) first, withdraw from the Distribution Account
and pay to the Fiscal Agent and Trustee any unpaid fees, expenses and other
amounts then required to be
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paid pursuant to this Agreement, and then, to the Paying Agent, any unpaid
fees, expenses and other amounts then required to be paid pursuant to this
Agreement, and then at the written direction of the Master Servicer, withdraw
from the Distribution Account and pay to the Master Servicer, the Primary
Servicers and Special Servicer any unpaid servicing compensation or other
amounts currently required to be paid pursuant to this Agreement (to the extent
not previously retained or withdrawn by the Master Servicer from the
Certificate Account), and (2) second, make distributions in the manner and
amounts set forth below.
Each distribution to Holders of Certificates shall be made by check mailed
to such Holder's address as it appears on the Certificate Register of the
Certificate Registrar or, upon written request to the Paying Agent on or prior
to the related Record Date (or upon standing instructions given to the Paying
Agent on the Closing Date prior to any Record Date, which instructions may be
revoked at any time thereafter upon written notice to the Paying Agent five
days prior to the related Record Date) made by a Certificateholder by wire
transfer in immediately available funds to an account specified in the request
of such Certificateholder; provided, that (i) remittances to the Paying Agent
shall be made by wire transfer of immediately available funds to the
Distribution Account and the Reserve Account; and (ii) the final distribution
in respect of any Certificate shall be made only upon presentation and
surrender of such Certificate at such location specified by the Paying Agent in
a notice delivered to Certificateholders pursuant to Section 10.2(a). If any
payment required to be made on the Certificates is to be made on a day that is
not a Business Day, then such payment will be made on the next succeeding
Business Day without compensation for such delay. All distributions or
allocations made with respect to Holders of Certificates of a Class on each
Distribution Date shall be made or allocated among the outstanding Interests in
such Class in proportion to their respective initial Certificate Balances or
Percentage Interests for the Class X Certificates.
SECTION 6.2 REMIC I
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Net Swap Payment that was
deemed distributed by the Paying Agent to the Master Servicer's Floating Rate
Account on the immediately preceding Master Servicer Remittance Date pursuant
to Section 8.30(b)) to itself on behalf of the Trustee, as holder of the REMIC
I Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution Amount
attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or REO Property, Distributable Certificate Interest
to each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution Amount
attributable to principal collected or deemed collected on or with respect
to each Mortgage Loan or REO Property, principal to the Corresponding
REMIC I Regular Interest, until the Certificate Balance thereof is reduced
to zero;
(iii) any remaining funds, to reimburse any Realized Losses
previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
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(iv) thereafter, to the Class R-I Certificateholders at such time as
the Certificate Balance of all Classes of REMIC I Regular Interests have
been reduced to zero, and Realized Losses previously allocated thereto
have been reimbursed to the Holders of the REMIC I Regular Interests, any
amounts remaining.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be deemed to
distribute (with a credit for an amount equal to any Net Swap Payment that was
deemed distributed by the Paying Agent to the Master Servicer's Floating Rate
Account on the immediately preceding Master Servicer Remittance Date pursuant
to Sections 8.30(b)) to itself on behalf of the Trustee, as holder of the REMIC
II Regular Interests, for the following purposes and in the following order of
priority:
(i) an amount equal to Distributable Certificate Interest for the
Class A-1 Certificates, Class A-2 Regular Interest, Class A-3
Certificates, Class X-1 Certificates and Class X-2 Certificates to REMIC
II Regular Interest A-1, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-3, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M and
REMIC II Regular Interest N, divided among such REMIC II Regular Interests
in proportion to (A) in the case of the REMIC II Regular Interest A-1,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II
Regular Interest A-3, the Accrued Certificate Interest for such
Distribution Date and (B) in the case of REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M and
REMIC II Regular Interest N, the product of the Certificate Balance of
such Interest and the sum of the related Class X-1 Strip Rate and the
related Class X-2 Strip Rate (if any);
(ii) to REMIC II Regular Interest A-1, REMIC II Regular Interest A-2
and REMIC II Regular Interest A-3, in reduction of the Certificate
Balances thereof, in an amount up to the Principal Distribution Amount for
such Distribution Date: first, to the REMIC II Regular Interest A-1 until
the Certificate Balance of REMIC II Regular Interest A-1 is reduced to
zero; second, to the REMIC II Regular Interest A-2A, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed to the REMIC II Regular Interest A-1),
until the Certificate Balance of the REMIC II Regular Interest A-2A has
been reduced to zero and upon payment in full of the Certificate Balance
of the REMIC II Regular Amount of the REMIC II Regular Interest A-2A, to
the REMIC II Regular Interest A-2B, the Principal Distribution Date for
such Distribution Date (reduced by any portion thereof deemed to be
distributed to the REMIC II Regular Interest A-1 and A-2A), until the
Certificate Balance of the REMIC II Regular Interest A-2B has been reduced
to zero; and third, to the REMIC II Regular Interest A-3 until the
Certificate Balance of REMIC II Regular Interest A-3 is reduced to zero;
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(iii) (A) to REMIC II Regular Interest A-1, REMIC II Regular Interest
A-2A and REMIC II Regular Interest A-2B, to reimburse any unreimbursed
Realized Losses previously allocated thereto, other than Realized Interest
Losses with respect to the Class X Certificates allocable under clause
(iv)(B), plus interest on such Realized Losses at one-twelfth of the
applicable Pass-Through Rate, pro rata on the basis of their respective
entitlements to reimbursements described in the clause (iv)(A), and (B) to
REMIC II Regular Interest A-1, REMIC II Regular Interest A-2A, REMIC II
Regular Interest A-2B, REMIC II Regular Interest A-3, REMIC II Regular
Interest B, REMIC II Regular Interest C, REMIC II Regular Interest D,
REMIC II Regular Interest E, REMIC II Regular Interest F, REMIC II Regular
Interest G, REMIC II Regular Interest H, REMIC Regular Interest J, REMIC
II Regular Interest K, REMIC II Regular Interest L, REMIC II Regular
Interest M and REMIC II Regular Interest N, pro rata on the basis of their
respective entitlements to reimbursement described in this clause (iv), to
reimburse any Realized Interest Losses previously allocated to REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC Regular Interest A-3, REMIC II Regular Interest B,
REMIC II Regular Interest C, REMIC II Regular Interest D, REMIC II Regular
Interest E, REMIC II Regular Interest F, REMIC II Regular Interest G,
REMIC II Regular Interest H, REMIC II Regular Interest J, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M and
REMIC II Regular Interest N as a result of the allocation of Realized
Interest Losses to the Class X Certificates plus interest on such Realized
Interest Losses at one-twelfth of the applicable Pass-Through Rate;
(iv) to the REMIC II Regular Interest B, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(v) upon payment in full of the Certificate Balances of the REMIC II
Regular Interest A-3, to the REMIC II Regular Interest B, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest B
has been reduced to zero;
(vi) to the REMIC II Regular Interest B, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(vii) to the REMIC II Regular Interest C, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(viii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest B, to the REMIC II Regular Interest C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest C
has been reduced to zero;
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(ix) to the REMIC II Regular Interest C, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(x) to the REMIC II Regular Interest D, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xi) upon payment in full of the Certificate Balance of the REMIC II
Regular Interest C, to the REMIC II Regular Interest D, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest D
has been reduced to zero;
(xii) to the REMIC II Regular Interest D, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xiii) to the REMIC II Regular Interest E, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xiv) upon payment in full of the Certificate Balance of the REMIC II
Regular Interest D, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest E
has been reduced to zero;
(xv) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xvi) to the REMIC II Regular Interest F, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xvii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest E, to the REMIC II Regular Interest F, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest F
has been reduced to zero;
(xviii) to the REMIC II Regular Interest F, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
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(xix) to the REMIC II Regular Interest G, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xx) upon payment in full of the Certificate Balance of the REMIC II
Regular Interest F, to the REMIC II Regular Interest G, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest G
has been reduced to zero;
(xxi) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxii) to the REMIC II Regular Interest H, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxiii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest G, to the REMIC II Regular Interest H, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest H
has been reduced to zero;
(xxiv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxv) to the REMIC II Regular Interest J, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxvi) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest H, to the REMIC II Regular Interest J, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest J
has been reduced to zero;
(xxvii) to the REMIC II Regular Interest J, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxviii) to the REMIC II Regular Interest K, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxix) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest J to the REMIC II Regular Interest K, the Principal
Distribution Amount for
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such Distribution Date (reduced by any portion thereof deemed to be
distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest K has been reduced to
zero;
(xxx) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxxi) to the REMIC II Regular Interest L, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxii) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest K to the REMIC II Regular Interest L, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest L
has been reduced to zero;
(xxxiii) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxxiv) to the REMIC II Regular Interest M, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxv) upon payment in full of the Certificate Balance of the REMIC
II Regular Interest L to the REMIC II Regular Interest M, the Principal
Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions
hereof), until the Certificate Balance of the REMIC II Regular Interest M
has been reduced to zero;
(xxxvi) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xxxvii) to the REMIC II Regular Interest N, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxviii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest M to the REMIC II Regular Interest N, the
Principal Distribution Amount for such Distribution Date (reduced by any
portion thereof deemed to be distributed pursuant to the preceding
provisions hereof), until the Certificate Balance of the REMIC II Regular
Interest N has been reduced to zero;
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(xxxix) to the REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus interest
on such Realized Losses at one-twelfth the applicable Pass-Through Rate;
(xl) thereafter, to the Class R-II Certificateholders at such time as
the Certificate Balances of all Classes of REMIC II Regular Interests have
been reduced to zero, and Realized Losses previously allocated thereto
have been reimbursed to the Holders of the REMIC II Regular Interests, any
amounts remaining.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III.
(a) On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account an amount equal to the Available Distribution Amount and
shall distribute such amount (other than the amount attributable to Excess
Interest which shall be distributed in accordance with Section 6.5(c), Excess
Liquidation Proceeds, and an amount equal to any Net Swap Payment that was
deemed distributed in respect of the Class A-2 Regular Interest on the
immediately preceding Master Servicer Remittance Date pursuant to Section
8.30(b)) in the following amounts and order of priority:
(i) to the Holders of the Class A-1 Certificates, Class A-2 Regular
Interest, Class A-3 Certificates, Class X-1 Certificates and Class X-2
Certificates, Distributable Certificate Interest for such Distribution
Date, pro rata in proportion to the Distributable Certificate Interest
payable to each such Class;
(ii) first, to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date until the
Certificate Balance thereof is reduced to zero; second, upon payment in
full of the aggregate Certificate Balance of the Class A-1 Certificates,
to the holders of the Class A-2 Regular Interest, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the aggregate Certificate Balance
of the Class A-2 Regular Interest has been reduced to zero; and third,
upon payment in full of the aggregate Certificate Balance of the Class A-2
Regular Interest, to the Holders of the Class A-3 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder) until the aggregate Certificate
Balance of the Class A-3 Certificates has been reduced to zero;
(iii) to the Holders of the Class A Certificates (other than the
Class A-2 Certificates) the Class A-2 Regular Interest, and in respect of
interest only, the Class X-1 Certificates and Class X-2 Certificates, pro
rata in proportion to their respective entitlements to reimbursement
described in this clause (treating principal and interest losses
separately), to reimburse any Realized Losses previously allocated thereto
and not previously fully reimbursed, plus interest on such Realized Losses
at one-twelfth the applicable Pass-Through Rate;
(iv) to the Holders of the Class B Certificates, Distributable
Certificate Interest for such Distribution Date;
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(v) upon payment in full of the Certificate Balance of the Class A-3
Certificates, to the Holders of the Class B Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class B Certificates has been reduced to zero;
(vi) to the Holders of the Class B Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
applicable Pass-Through Rate;
(vii) to the Holders of the Class C Certificates, Distributable
Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance of the Class B
Certificates, to the Holders of the Class C Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class C Certificates has been reduced to zero;
(ix) to the Holders of the Class C Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
applicable Pass-Through Rate;
(x) to the Holders of the Class D Certificates, Distributable
Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance of the Class C
Certificates, to the Holders of the Class D Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class D Certificates has been reduced to zero;
(xii) to the Holders of the Class D Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
applicable Pass-Through Rate;
(xiii) to the Holders of the Class E Certificates, Distributable
Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance of the Class D
Certificates, to the Holders of the Class E Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class E Certificates has been reduced to zero;
(xv) to the Holders of the Class E Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
applicable Pass-Through Rate;
(xvi) to the Holders of the Class F Certificates, Distributable
Certificate Interest for such Distribution Date;
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(xvii) upon payment in full of the Certificate Balance of the Class E
Certificates, to the Holders of the Class F Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class F Certificates has been reduced to zero;
(xviii) to the Holders of the Class F Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
applicable Pass-Through Rate;
(xix) to the Holders of the Class G Certificates, Distributable
Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate Balance of the Class F
Certificates, to the Holders of the Class G Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class G Certificates has been reduced to zero;
(xxi) to the Holders of the Class G Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxii) to the Holders of the Class H Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate Balance of the Class
G Certificates, to the Holders of the Class H Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class H Certificates has been reduced to zero;
(xxiv) to the Holders of the Class H Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxv) to the Holders of the Class J Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate Balance of the Class H
Certificates, to the Holders of the Class J Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxvii) to the Holders of the Class J Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxviii) to the Holders of the Class K Certificates, Distributable
Certificate Interest for such Distribution Date;
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(xxix) upon payment in full of the Certificate Balance of the Class J
Certificates, to the Holders of the Class K Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class K Certificates has been reduced to zero;
(xxx) to the Holders of the Class K Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxxi) to the Holders of the Class L Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate Balance of the Class
K Certificates, to the Holders of the Class L Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class L Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class L Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxxiv) to the Holders of the Class M Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate Balance of the Class L
Certificates, to the Holders of the Class M Certificates, the Principal
Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the
Class M Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class M Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate;
(xxxvii) to the Holders of the Class N Certificates, Distributable
Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate Balance of the
Class M Certificates, to the Holders of the Class N Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of
the Class N Certificates has been reduced to zero;
(xxxix) to the Holders of the Class N Certificates, to reimburse any
Realized Losses previously allocated thereto and not previously fully
reimbursed, plus interest on such Realized Losses at one-twelfth the
Pass-Through Rate; and
(xl) to the Holders of the Class R-III Certificates at such time as
the Certificate Balances of all Classes of REMIC III Certificates and the
Class A-2 Regular Interest have been reduced to zero, and Realized Losses
previously allocated to each Holder have been
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reimbursed to the Holders of the REMIC III Certificates and the Class A-2
Regular Interest, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date occurring on or
after the earliest date, if any, upon which the Certificate Balances of all the
Classes of Subordinate Certificates have been reduced to zero or the aggregate
Appraisal Reduction in effect is greater than or equal to Certificate Balances
of all the Classes of Subordinate Certificates, the Principal Distribution
Amount will be distributed, first, to the Holders of the Class A-1, Class A-2
Regular Interest and Class A-3 Certificates, pro rata, based on their
respective Certificate Balances, in reduction of their respective Certificate
Balances, until the Certificate Balance of each such Class is reduced to zero;
and, second, to the Holders of the Class A-1, Class A-2 Regular Interest and
Class A-3 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses previously allocated to each such Class, plus
interest on such Realized Losses at one-twelfth the applicable Pass-Through
Rate. A similar rule shall apply to the distribution of the Principal
Distribution Amount to REMIC II Regular Interests X-0, X-0X, X-0X xxx X-0 in
lieu of the distributions described in Section 6.3(a)(ii).
(b) On each Distribution Date, the Paying Agent shall withdraw amounts in
the Reserve Account and shall pay the Certificateholders on such Distribution
Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal Balance
Certificates (in order of alphabetical Class designation) for any, and to
the extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate Certificate Balance
of the Principal Balance Certificates to zero, to pay any amounts
remaining on deposit in such account to the Special Servicer as additional
Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to reimbursement of
Realized Losses previously allocated to the REMIC II Regular Interests.
(c) On each Distribution Date, the Paying Agent shall withdraw from the
Excess Interest Sub-account any Excess Interest on deposit therein, and the
Paying Agent shall pay such Excess Interest on such Distribution Date to the
Class N Certificates (even if the Certificate Balance of the Class N
Certificates has been reduced to zero for any reason).
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES AND SHORTFALLS
DUE TO NONRECOVERABILITY
(a) REMIC I. On each Distribution Date, except as provided in subsection
(b) below,
(i) Realized Principal Losses on each Mortgage Loan realized during
the related Collection Period shall reduce the Certificate Balance of the
Corresponding REMIC I Regular Interest;
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(ii) Realized Interest Losses on each Mortgage Loan shall be
allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such
Realized Interest Loss exceeds such amount, shall be treated as an Expense
Loss;
(iii) Expense Losses (not otherwise applied above) realized during
the related Collection Period shall be allocated among the REMIC I Regular
Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Trustee or the Fiscal
Agent, determines that an Advance previously made by it is a Nonrecoverable
Advance and the Master Servicer withdraws the amount of such Advance from the
Certificate Account pursuant to Section 5.2(a) hereof (which amount shall be
treated as an Available Advance Reimbursement Amount pursuant to Section 4.6),
it shall determine the portion of the amount so withdrawn that is attributable
to (w) interest on the related Mortgage Loan; (x) principal on the related
Mortgage Loan; (y) Servicing Advances; and (z) Advance Interest. The portion of
the amount so withdrawn from the Certificate Account that is allocable to:
(i) amounts previously advanced as interest on the related Mortgage
Loan shall reduce the Available Distribution Amount for REMIC I and shall
be allocated to reduce the amount of interest paid on each REMIC I Regular
Interest on such Distribution Date in proportion to Distributable
Certificate Interest otherwise payable thereon, and shall result in Unpaid
Interest on each such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the related Mortgage
Loan shall reduce the Available Distribution Amount for REMIC I and shall
be allocated to reduce the principal paid on each REMIC I Regular Interest
on which principal would otherwise be paid on such Distribution Date, in
proportion to such principal payments; and
(iii) amounts previously advanced as Servicing Advances, as well as
Advance Interest owing to the Master Servicer, the Trustee or the Fiscal
Agent with respect to Advances shall be treated as Expense Losses and
allocated in accordance with Section 6.6(a)(iii) above.
(c) At such time as a Final Recovery Determination is made with respect to
any Mortgage Loan with respect to which the Master Servicer previously had
withdrawn amounts from the Certificate Account following a determination that
Advances previously made were Nonrecoverable Advances, or at such other time as
a Realized Loss shall occur with respect to any such Mortgage Loan, the Master
Servicer shall compute the Realized Loss with respect to such Mortgage Loan and
the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss does not exceed
the Certificate Balance on the Corresponding REMIC I Regular Interest,
such Realized Principal Loss shall be allocated to such REMIC I Regular
Interest; and to the extent that any Realized
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Principal Loss exceeds the Certificate Balance of the Corresponding REMIC
I Regular Interest, such Realized Principal Loss shall be allocated to the
other Corresponding REMIC I Regular Interests with respect to which
distributions of principal were reduced pursuant to Section 6.6(b)(i)
above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to the
Corresponding REMIC I Interest to the extent of Unpaid Interest thereon
and any remaining portion of the Realized Interest Loss shall be allocated
as a Realized Interest Loss on each REMIC I Regular Interest with respect
to which Unpaid Interest was created pursuant to Section 6.6(b)(ii) above
in proportion to the amount of Unpaid Interest resulting from the
reduction in distributions of interest on such REMIC I Regular Interest
pursuant to Section 6.6(b)(ii) above;
(iii) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of principal on the Mortgage Loan shall be
applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Realized Principal Losses previously allocated
thereto are reduced to zero and thereafter to make payments of principal
to the Corresponding REMIC I Regular Interests with respect to which
principal distributions were reduced pursuant to Section 6.6(b)(ii) above,
in proportion to the amount of such reductions;
(iv) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that
are treated as Recoveries of interest on the Mortgage Loan shall be
applied first, to make payments of Unpaid Interest on the Corresponding
REMIC I Regular Interest and thereafter to make payments of interest on
each REMIC I Interest with respect to which Unpaid Interest was created
pursuant to Section 6.6(b)(i) above in proportion to the amount of Unpaid
Interest resulting from the reduction in distributions of interest on such
REMIC I Regular Interest pursuant to Section 6.6(b)(i) above; and
(v) the portion of the amount recovered on the Mortgage Loan with
respect to which amounts were withdrawn from the Certificate Account that
is treated as a recovery of expenses on the Mortgage Loan shall be applied
in reimbursement of Expense Losses on each REMIC I Regular Interest with
respect to which an Expense Loss was created pursuant to Section
6.6(b)(iii) above in proportion to the amount of the Expense Loss
allocated thereto pursuant to Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized Losses on the REMIC
I Interests for such Distribution Date (or for prior Distribution Dates, to the
extent not previously allocated) shall be allocated to the Corresponding REMIC
II Regular Interests in the amounts and in the manner as will be allocated to
the REMIC III Certificates and the Class A-2 Regular Interest relating thereto
pursuant to Section 6.6(f). Realized Losses allocated to the Class X
Certificates shall reduce the amount of interest payable on the REMIC II
Regular Interest A-1, REMIC II Regular Interest A-2A, REMIC II Regular Interest
A-2B, REMIC II Regular Interest A-3, REMIC II Regular Interest B, REMIC II
Regular Interest C, REMIC II Regular Interest D, REMIC II Regular Interest E,
REMIC II Regular Interest F, REMIC II Regular Interest G, REMIC II Regular
Interest H, REMIC II Regular Interest J, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M and REMIC II Regular Interest
N,
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which reduction shall be allocated pro rata based on the product of the
Certificate Balance of such REMIC II Regular Interest and the sum of the Class
X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to the Class of
Certificates relating to such REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized Losses on the REMIC
II Regular Interests for such Distribution Date (or for prior Distribution
Dates, to the extent not previously allocated) shall be allocated to the REMIC
III Certificates and the Class A-2 Regular Interest in Reverse Sequential
Order, in each case reducing (A) the Certificate Balance of such Class until
such Certificate Balance is reduced to zero (in the case of the Principal
Balance Certificates); (B) Unpaid Interest owing to such Class to the extent
thereof; and (C) Distributable Certificate Interest owing to such Class,
provided, that such reductions shall be allocated among the Class A-1
Certificates, Class A-2 Regular Interest, Class A-3 Certificates, Class X-1
Certificates and Class X-2 Certificates, pro rata, based upon their outstanding
Certificate Balances or accrued interest, as the case may be, and provided
further that Realized Losses shall not reduce the Aggregate Certificate Balance
of the REMIC III Certificates and the Class A-2 Regular Interest below the sum
of the Aggregate Certificate Balances of the REMIC II Regular Interests. Losses
of interest allocated to the Class A-2 Regular Interest reduce the interest
distributable to the Class A-2 Certificates by an equivalent amount. Losses of
principal that reduce the balance of the Class A-2 Regular Interest reduce the
balance of the Class A-2 Certificates by an equivalent amount.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On each
Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in REMIC I,
shall be allocated among the REMIC I Regular Interests, pro rata in proportion
to the Accrued Certificate Interest for each such REMIC I Regular Interest for
such Distribution Date and shall reduce Distributable Certificate Interest for
each such Interest. On each Distribution Date, any Net Aggregate Prepayment
Interest Shortfalls in REMIC II shall be allocated among the REMIC II Regular
Interests, pro rata in proportion to the Accrued Certificate Interest for each
such REMIC II Regular Interest for such Distribution Date and shall reduce
Distributable Certificate Interest for each such Interest. On each Distribution
Date, the amount of any Net Aggregate Prepayment Interest Shortfalls on the
REMIC III Regular Interests shall be allocated to each Class of Certificates
(other than the Class A-2 Certificates) and the Class A-2 Regular Interest, pro
rata, in proportion to the amount of Accrued Certificate Interest payable to
such Class of Certificates or Class A-2 Regular Interest on such Distribution
Date, in each case reducing interest otherwise payable thereon. The amount of
Net Aggregate Prepayment Interest Shortfalls allocated to a Class of
Certificates pursuant to the preceding sentence shall reduce the Distributable
Certificate Interest for such Class for such Distribution Date. Any amounts of
Net Aggregate Prepayment Interest Shortfalls allocated to the Class A-2 Regular
Interest shall reduce the amount of interest distributable to the Class A-2
Certificates by an equivalent amount. No Prepayment Interest Shortfall with
respect to a B Note shall be allocated to any Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master Servicing Fee payable
to the Master Servicer shall be adjusted as provided in Section 8.10(c) herein.
Any amount retained by REMIC I as a result of a reduction of the Master
Servicing Fee shall be treated as
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interest collected with respect to the prepaid Mortgage Loans with respect to
which the Master Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on which an
Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan, if the
Principal Balance of such Mortgage Loan exceeds $2,000,000 or (B) at the option
of the Special Servicer, if such Principal Balance is less than or equal to
$2,000,000, either an internal valuation prepared by the Special Servicer in
accordance with MAI standards or an Appraisal which in all cases shall be
completed as of the date that such Mortgage Loan becomes a Required Appraisal
Loan; provided that if the Special Servicer had completed or obtained an
Appraisal or internal valuation within the immediately prior 12 months, the
Special Servicer may rely on such Appraisal or internal valuation and shall
have no duty to prepare a new Appraisal or internal valuation, unless such
reliance would not be in accordance with the Servicing Standard; provided,
further, that if the Special Servicer is required to obtain an Appraisal of a
Mortgaged Property after receipt of the notice described in clause (ii) of the
definition of Appraisal Event, such Appraisal will be obtained no later than 60
days after receipt of such notice and an internal valuation will be obtained no
later than 60 days after receipt of such notice. Such Appraisal or valuation
shall be conducted in accordance with the definition of "market value" as set
forth in 12 C.F.R. ss. 225.62 and shall be updated at least annually to the
extent such Mortgage Loan remains a Required Appraisal Loan. The cost of any
such Appraisal or valuation, if not performed by the Special Servicer, shall be
an expense of the Trust and may be paid from REO Income or, to the extent
collections from such related Mortgage Loan or Mortgaged Property does not
cover the expense, such unpaid expense shall be, subject to Section 4.4 hereof,
advanced by the Master Servicer at the request of the Special Servicer pursuant
to Section 4.6 in which event it shall be treated as a Servicing Advance. The
Master Servicer, based on the Appraisal or internal valuation provided to it by
the Special Servicer, shall calculate any Appraisal Reduction. The Master
Servicer shall calculate or recalculate the Appraisal Reduction for any
Mortgage Loan based on updated Appraisals or internal valuations provided from
time to time to it by the Special Servicer. Notwithstanding the foregoing, the
terms of this Section 6.9 shall not be applicable to the Pari Passu Loan if the
2001-TOP3 Special Servicer shall have performed such obligations with respect
to such Mortgage Loan pursuant to the terms of the 2001-TOP3 Pooling and
Servicing Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS. Notwithstanding any
other provision of this Agreement to the contrary, the Paying Agent on behalf
of the Trustee shall comply with all federal withholding requirements with
respect to payments to Certificateholders of interest, original issue discount,
or other amounts that the Paying Agent reasonably believes are applicable under
the Code. The consent of Certificateholders shall not be required for any such
withholding and any amount so withheld shall be regarded as distributed to the
related Certificateholders for purposes of this Agreement. In the event the
Paying Agent withholds any amount from payments made to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate
to such Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMSAny Prepayment Premium collected with
respect to a Mortgage Loan (but not a B Note, which Prepayment Premium is
payable to the
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holder of the B Note) during any particular Collection Period will be deemed
distributed to the Trustee by the Paying Agent on the following Distribution
Date as follows: (i) first, the Paying Agent shall be deemed to distribute to
the Trustee, as holder of the REMIC I Regular Interest to which such Mortgage
Loan relates, any Prepayment Premiums collected on or with respect to such
Mortgage Loan; and (ii) second, the Paying Agent shall be deemed to distribute
to the Trustee, as holder of the REMIC II Regular Interests, any Prepayment
Premiums deemed distributed to the REMIC I Regular Interests, and shall be
deemed to distribute such Prepayment Premiums to the REMIC II Regular Interest
then entitled to distributions of principal from the Principal Distribution
Amount (or, if more than one Class of REMIC II Regular Interests is then
entitled to distributions of principal from the Principal Distribution Amount,
such Prepayment Premiums shall be deemed distributed among such Classes pro
rata in accordance with the relevant amounts of entitlements to distributions
of principal). Following such deemed distributions, the Holders of the
respective Classes of Principal Balance Certificates (other than the Class A-2,
Class G, Class H, Class J, Class K, Class L, Class M and Class N Certificates)
and the Class A-2 Regular Interest, then entitled to distributions of principal
from the Principal Distribution Amount for such Distribution Date, will be
entitled to, and the Paying Agent on behalf of the Trustee will pay to such
Holder(s), an amount equal to, in the case of each such Class, the product of
(a) a fraction, the numerator of which is the amount distributed as principal
to the holders of that Class on that Distribution Date, and the denominator of
which is the total amount distributed as principal to the holders of all
Classes on that Distribution Date, (b) the Base Interest Fraction for the
related Principal Prepayment and that Class and (c) the aggregate amount of
Prepayment Premiums collected during the related Collection Period. Any portion
of such Prepayment Premium that is not so distributed to the Holders of such
Principal Balance Certificates or such Class A-2 Regular Interest will be
distributed to the Holders of the Class X-1 Certificates. The Trustee shall not
be responsible for the Paying Agent's failure to comply with any withholding
requirements. For so long as the Swap Contract or any replacement Swap Contract
is in effect, the Prepayment Premium allocated to the Class A-2 Regular
Interest shall be payable to the Swap Counterparty pursuant to the terms of the
Swap Contract. If the Swap Contract and any replacement Swap Contracts are no
longer in effect, any Prepayment Premium allocated to the Class A-2 Regular
Interest shall be distributed to the Class A-2 Certificates.
SECTION 6.12 OTHER DISTRIBUTIONS
On each Master Servicer Remittance Date, the Paying Agent shall be deemed
to distribute to the Master Servicer, for deposit in the Master Servicer's
Floating Rate Account with respect to Net Swap Payments, that amount specified
by the Paying Agent pursuant to Section 8.30(b). The Master Servicer shall
offset and retain such amounts from the payment it delivers to the Paying Agent
on the Master Servicer Remittance Date pursuant to Section 5.2(a)(xi) and shall
deposit such amount, on behalf of the Trustee, in the Master Servicer's
Floating Rate Account, and such payment shall be deemed to have been made by
the Paying Agent as a payment of a portion of the interest and Prepayment
Premiums, as applicable, on the Class A-2 Regular Interest. On each
Distribution Date, the Paying Agent shall distribute the Class A-2 Available
Funds for such Distribution Date to the Holders of record of the Class A-2
Certificates as of the related Record Date in the following amounts: (i) the
Class A-2 Interest Distribution Amount, (ii) the Class A-2 Principal
Distribution Amount, and (iii) only if the Swap Contract has been terminated
and no replacement Swap Contract has been entered into, any Prepayment Premiums
that were allocated to the Class A-2 Regular Interest. No Holder of a Class A-2
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Certificate shall be entitled to receive any portion of any Prepayment Premium
paid on the Class A-2 Regular Interest unless the Swap Contract has been
terminated and no replacement Swap Contract has been entered into. Such amount
shall be payable to the Swap Counterparty pursuant to the terms of the Swap
Contract. Following a Swap Default under the Swap Contract or other default or
event of termination of the Swap Contract, and during the period when the
Trustee is pursuing remedies under such Swap Contract, the Class A-2 Interest
Distribution Amount for each Class A-2 Certificate shall equal the
Distributable Certificate Interest Amount for the Class A-2 Regular Interest,
until such time as the conditions giving rise to such Swap Default or other
default have been cured. Any such Swap Default, other default or event of
termination, and the consequent change to a fixed Pass-Through Rate shall not
constitute a default under this Agreement. To the extent required by The
Depository Trust Company, a Swap Default can result in a delay in the
distribution of amounts payable to the Class A-2 Certificates and such delay
will not constitute a default under this Agreement nor result in the accrual of
interest on such delayed payment and no party hereto shall be obligated to
advance such amounts. Notwithstanding the foregoing, to the extent provided in
the Swap Contract, the Swap Counterparty will remain liable for such Swap
Default or other default or event of termination pursuant to the Swap Contract.
For as long as a Swap Default or other default or event of termination has
occurred and a Class A-2 Certificate is receiving the fixed Pass-Through Rate,
such Class A-2 Certificate shall accrue interest at the same rate, on the same
basis and in the same manner as the related Class A-2 Regular Interest.
If the Swap Contract becomes subject to early termination due to the
occurrence of an event of default or a termination event thereunder, the Paying
Agent on behalf of the Trustee shall promptly provide written notice to the
Holders of the Class A-2 Certificates and the Trustee shall take such
commercially reasonable actions (following the expiration of any applicable
grace period), unless directed in writing by the Certificateholders evidencing,
in the aggregate, not less than 25% of the Voting Rights of the Class A-2
Certificates, to enforce the rights of the Trust under the Swap Contract as may
be permitted by the terms of the Swap Contract and consistent with the terms
hereof, and shall apply the proceeds collected from the Swap Counterparty in
connection with any such actions (including, without limitation, the proceeds
of the liquidation of any collateral pledged by the Swap Counterparty) to enter
into a replacement interest rate swap contract on substantially identical terms
or on such other terms reasonably acceptable to the Trustee. Each Rating Agency
shall confirm in writing that such action will not result in a qualification,
downgrade or withdrawal of the then-current ratings of the Certificates. If the
costs attributable to entering into a replacement interest rate swap contract
will exceed the sum of the net proceeds of the liquidation of the Swap
Contract, a replacement interest rate swap contract shall not be entered into.
Prior to the application of any proceeds in accordance with the terms of this
paragraph, such proceeds shall be deposited in a segregated trust account,
which shall be an Eligible Account, established by the Paying Agent and
identified as held in trust for the benefit of the Certificateholders of the
Class A-2 Certificates. Any proceeds of the liquidation of the Swap Contract
which exceed the costs attributable to entering into a replacement interest
rate swap contract (or if no replacement interest rate swap contract is entered
into) shall be deposited into the Floating Rate Account and shall be
distributed to the holders of the Class A-2 Certificates.
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The Trustee and the Paying Agent shall be entitled to conclusively rely on
the report from the Swap Counterparty that specifies LIBOR for any Interest
Accrual Period.
If the Swap Contract is terminated and there is no replacement, the
Trustee shall notify the Paying Agent and the Paying Agent shall provide the
following notice of such termination in the next Distribution Date Statement:
"The Swap Contract with respect to the Class A-2 Certificates is terminated as
of [date]. Certificateholders and Beneficial Owners that are Plans are advised
that the Exemptions will no longer apply to the Class A-2 Certificates,
effective 60 days after the receipt of this notice. All capitalized terms used
in this notice shall have the meaning assigned to them in the Pooling and
Servicing Agreement."
Notwithstanding anything herein to the contrary, any expenses incurred by
the Trustee under this Section 6.12 shall be paid by the Class A-2 Grantor
Trust, and not by any other trust hereunder, but only upon the Trustee's
determination that such expenses cannot be recovered from the Swap Counterparty
or any proceeds due under the Swap Contract. Factors that the Trustee may
consider when making a recoverability determination with respect to the
reimbursement of such expenses include, but are not limited to, (i) the
financial condition of the Swap Counterparty and (ii) the likelihood that the
Swap Counterparty will make such reimbursements in the event the Trustee
pursues appropriate legal action or other commercially reasonable enforcement
and collection measures.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each shall
undertake to perform only those duties as are specifically set forth in this
Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and during the continuation of any Event
of Default hereunder, the Trustee and Fiscal Agent and the Paying Agent each
shall use the same degree of care and skill in its exercise as a prudent Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as applicable, upon
receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Trustee, the Fiscal
Agent or the Paying Agent , as the case may be, which are specifically required
to be furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they on their face conform to the requirements of this
Agreement; provided that the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument furnished by the Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
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conform to the requirements of this Agreement, the Trustee or the Paying Agent
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying Agent nor any of
their respective directors, officers, employees, agents or Controlling Persons
shall have any liability to the Trust or the Certificateholders arising out of
or in connection with this Agreement, except for their respective negligence or
willful misconduct. No provision of this Agreement shall be construed to
relieve the Trustee, the Fiscal Agent, the Paying Agent or any of their
respective directors, officers, employees, agents or Controlling Persons from
liability for their own negligent action, their own negligent failure to act or
their own willful misconduct or bad faith; provided that:
(i) neither the Trustee, the Fiscal Agent nor the Paying Agent nor
any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable with respect to any action
taken, suffered or omitted to be taken by it in its reasonable business
judgment in accordance with this Agreement or at the direction of Holders
of Certificates evidencing not less than a majority of the outstanding
Certificate Balance of the Certificates;
(ii) no provision of this Agreement shall require either the Trustee,
the Fiscal Agent or the Paying Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it;
(iii) neither the Trustee, the Fiscal Agent nor the Paying Agent nor
any of their respective directors, officers, employees, agents or
Controlling Persons shall be responsible for any act or omission of the
Master Servicer, the Special Servicer, the Depositor or either Seller, or
for the acts or omissions of each other, including, without limitation, in
connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent of any forms or
plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
(v) none of the Trustee, the Fiscal Agent nor the Paying Agent shall
be under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties as Trustee, the Fiscal Agent or the
Paying Agent, as applicable in accordance with this Agreement. In such
event, all legal expense and costs of such action shall be expenses and
costs of the Trust, and the Trustee, the Paying Agent and the Fiscal Agent
shall be entitled to be reimbursed therefor from the Certificate Account
pursuant to Section 5.2(a)(vi); and
(vi) neither the Trustee, the Fiscal Agent nor the Paying Agent shall
be charged with knowledge of any failure by the Master Servicer or the
Special Servicer or by each other to comply with its obligations under
this Agreement or any act, failure, or breach of any Person upon the
occurrence of which the Trustee, the Fiscal Agent or the Paying Agent may
be
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required to act, unless a Responsible Officer of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, obtains actual knowledge of
such failure.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying Agent each may
request, and may rely and shall be protected in acting or refraining from
acting upon any resolution, Officer's Certificate, certificate of auditors
or any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying Agent each may
consult with counsel and the advice of such counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the Paying Agent
nor any of their respective directors, officers, employees, agents or
Controlling Persons shall be personally liable for any action taken,
suffered or omitted by such Person in its reasonable business judgment and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement;
(iv) the Trustee and the Paying Agent shall not be under any
obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document
(provided the same appears regular on its face), unless requested in
writing to do so by Holders of at least 25% of the Aggregate Certificate
Balance of the Certificates then outstanding provided that, if the payment
within a reasonable time to the Trustee or the Paying Agent, as
applicable, of the costs, expenses or liabilities likely to be incurred by
it in connection with the foregoing is, in the opinion of such Person not
reasonably assured to such Person by the security afforded to it by the
terms of this Agreement, such Person may require reasonable indemnity
against such expense or liability or payment of such estimated expenses as
a condition to proceeding. The reasonable expenses of the Trustee or the
Paying Agent, as applicable, shall be paid by the Certificateholders
requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying Agent each may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, which
agents or attorneys shall have any or all of the rights, powers, duties
and obligations of the Trustee, the Fiscal Agent and the Paying Agent
conferred on them by such appointment; provided that each of the Trustee,
the Fiscal Agent and the Paying Agent, as the case may be, shall continue
to be responsible for its duties and obligations
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hereunder and shall not be liable for the actions or omissions of the
Master Servicer, the Special Servicer, the Depositor or the actions or
omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall be required to obtain a deficiency judgment against a Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall be required to expend its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the Paying Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement;
(ix) unless otherwise specifically required by law, neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall be required to
post any surety or bond of any kind in connection with the execution or
performance of its duties hereunder; and
(x) except as specifically provided hereunder in connection with the
performance of its specific duties, neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall be responsible for any act or omission of
the Master Servicer, the Special Servicer, the Depositor or of each other.
(b) Following the Closing Date, the Trustee shall not accept any
contribution of assets to the Trust not specifically contemplated by this
Agreement unless the Trustee shall have received a Nondisqualification Opinion
at the expense of the Person desiring to contribute such assets with respect to
such contribution.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial
or any proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the amount of any
and all federal, state and local taxes imposed on the Trust or its assets or
transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
income from foreclosure property" as defined in Section 860G(c) of the Code,
but only if such taxes arise out of a breach by the Trustee of its obligations
hereunder, which breach constitutes negligence or willful misconduct of the
Trustee.
(e) The Paying Agent shall timely pay, from its own funds, the amount of
any and all federal, state and local taxes imposed on the Trust or its assets
or transactions including, without limitation, (A) "prohibited transaction"
penalty taxes as defined in Section 860F of the Code, if, when and as the same
shall be due and payable, (B) any tax on contributions to a REMIC after the
Closing Date imposed by Section 860G(d) of the Code and (C) any tax on "net
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income from foreclosure property" as defined in Section 860G(c) of the Code,
but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful
misconduct of the Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT NOT LIABLE
FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee, the Fiscal Agent
and the Paying Agent each makes no representations as to the validity or
sufficiency of this Agreement, the information contained in the Private
Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the Certificates (other than the
Certificate of Authentication on the Certificates if the Paying Agent is the
Authenticating Agent) or of any Mortgage Loan, Assignment of Mortgage or
related document save that (i) each of the Trustee, the Fiscal Agent and the
Paying Agent represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general
principles of equity regardless of whether such enforcement is considered in a
proceeding in equity or at law and (ii) the Trustee represents that, assuming
due execution and delivery by the other parties hereto, this Agreement has been
duly authorized, executed and delivered by it and constitutes its valid and
binding obligation, enforceable against it in accordance with its terms except
that such enforceability may be subject to (A) applicable bankruptcy and
insolvency laws and other similar laws affecting the enforcement of the rights
of creditors generally, and (B) general principles of equity regardless of
whether such enforcement is considered in a proceeding in equity or at law.
None of the Trustee, the Fiscal Agent or the Paying Agent shall be accountable
for the use or application by the Depositor or the Master Servicer or the
Special Servicer or by each other of any of the Certificates or any of the
proceeds of such Certificates, or for the use or application by the Depositor
or the Master Servicer or the Special Servicer or by each other of funds paid
in consideration of the assignment of the Mortgage Loans to the Trust or
deposited into the Distribution Account or any other fund or account maintained
with respect to the Certificates or any account maintained pursuant to this
Agreement or for investment of any such amounts. No recourse shall be had for
any claim based on any provisions of this Agreement, the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement, the Prospectus or the Certificates (except with respect to the
Trustee and Fiscal Agent to the extent of information furnished by the Trustee
and the Fiscal Agent under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES-- The Trustee and the Fiscal Agent" and with respect to the Paying
Agent, to the extent of information furnished by the Paying Agent under the
caption "DESCRIPTION OF THE OFFERED CERTIFICATES-- Paying Agent, Certificate
Registrar and Authenticating Agent" each in the Preliminary Prospectus
Supplement and the Final Prospectus Supplement), the Mortgage Loans or the
assignment thereof against the Trustee, the Fiscal Agent or the Paying Agent in
such Person's individual capacity and any such claim shall be asserted solely
against the Trust or any indemnitor who shall furnish indemnity as provided
herein. Neither the Trustee nor the Fiscal Agent nor the Paying Agent shall be
liable for any action or failure of any action by the Depositor or the Master
Servicer or the Special Servicer or by each other hereunder. Neither the
Trustee nor the Fiscal Agent nor the Paying Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of the
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Mortgages or the Mortgage Loans, or the perfection and priority of the
Mortgages or the maintenance of any such perfection and priority, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Certificateholders under this Agreement,
including, without limitation, the existence, condition and ownership of any
Mortgaged Property; the existence and enforceability of any hazard insurance
thereon; the validity of the assignment of the Mortgage Loans to the Trust or
of any intervening assignment; the completeness of the Mortgage Loans; the
performance or enforcement of the Mortgage Loans (other than if the Trustee
shall assume the duties of the Master Servicer); the compliance by the
Depositor, each Seller, the Mortgagor or the Master Servicer or the Special
Servicer or by each other with any warranty or representation made under this
Agreement or in any related document or the accuracy of any such warranty or
representation made under this Agreement or in any related document prior to
the receipt by a Responsible Officer of the Trustee of notice or other
discovery of any non-compliance therewith or any breach thereof; any investment
of monies by or at the direction of the Master Servicer or the Special Servicer
or any loss resulting therefrom; the failure of the Master Servicer or any
Sub-Servicer or the Special Servicer to act or perform any duties required of
it on behalf of the Trustee hereunder; or any action by the Trustee taken at
the instruction of the Master Servicer or the Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT MAY OWN
CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying Agent in its
individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT. The Trustee hereunder shall at all times be (i) an
institution insured by the FDIC, (ii) a corporation, national bank or national
banking association authorized to exercise corporate trust powers, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "Prime-1" by Xxxxx'x and "A-1" by S&P and whose long-term senior unsecured
debt is at all times rated not less than "AA-" by S&P (unless a Fiscal Agent is
appointed that has a long-term unsecured rating that is at least "AA" by S&P)
and "Aa2" by Xxxxx'x (unless a Fiscal Agent is appointed that has a long-term
unsecured rating that is at least "Aa2" by Xxxxx'x) or otherwise acceptable to
the Rating Agencies as evidenced by a Rating Agency Confirmation. If such
corporation, national bank or national banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such corporation, national bank or
national banking association shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with
provisions of this Section, the Trustee or the Fiscal Agent shall resign
immediately in the manner and with the effect specified in Section 7.6.
(b) The Paying Agent shall be either a bank or trust company or otherwise
authorized under law to exercise corporate trust powers and shall be rated at
least "A" by S&P and "A2" by Xxxxx'x, unless and to the extent Rating Agency
Confirmation is obtained.
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SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE FISCAL AGENT OR
THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may at any time
resign and be discharged from the trusts hereby created by giving written
notice thereof to the Depositor, the Master Servicer, the Swap Counterparty and
the Rating Agencies; provided that such resignation shall not be effective
until its successor shall have accepted the appointment. Upon receiving such
notice of resignation, the Depositor will promptly appoint a successor trustee,
fiscal agent or paying agent, as the case may be, except in the case of the
initial Trustee or Fiscal Agent, in which case both shall be so replaced but
may be replaced under this paragraph sequentially, by written instrument, one
copy of which instrument shall be delivered to the resigning Trustee or the
Fiscal Agent, one copy to the successor trustee and one copy to each of the
Master Servicer, the Paying Agent and the Rating Agencies. If no successor
trustee, fiscal agent or paying agent shall have been so appointed, as the case
may be, and shall have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, may petition any court of competent
jurisdiction for the appointment of a successor trustee, fiscal agent or paying
agent, as the case may be. It shall be a condition to the appointment of a
successor trustee or fiscal agent that such entity satisfies the eligibility
requirements set forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed or threatened with respect to the Trust or any REMIC Pool by any
state in which the Trustee or the Trust held by the Trustee is located solely
because of the location of the Trustee in such state; provided, however, that,
if the Trustee agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), (iv) the continuation of the Trustee as
such would result in a downgrade, qualification or withdrawal of the rating by
the Rating Agencies of any Class of Certificates with a rating as evidenced in
writing by the Rating Agencies or (v) with respect with the initial Trustee, a
Fiscal Agent Termination Event has occurred unless the Trustee has satisfied
the ratings required by clause (iii) of Section 7.5, then the Depositor may
remove such Trustee and appoint a successor trustee by written instrument, one
copy of which instrument shall be delivered to the Trustee so removed, one copy
to the successor trustee and one copy to each of the Master Servicer, the Swap
Counterparty and the Rating Agencies. In the case of removal under clauses (i),
(ii), (iii) and (iv) above, the Trustee shall bear all such costs of transfer.
Such succession shall take effect after a successor trustee has been appointed.
In the case of the removal of the initial Trustee, the Depositor shall also
remove the Fiscal Agent. In this case, the procedures and liability for costs
of such removal shall be the same as they are stated in subsection (c) with
respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be eligible in
accordance with the provisions of Section 7.5 and shall fail to resign after
written request therefor by the Depositor, or (ii) a Fiscal Agent Termination
Event has occurred, then the Depositor shall send a
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written notice of termination to the Fiscal Agent (which notice shall specify
the reason for such termination) and remove such Fiscal Agent and appoint a
successor Fiscal Agent by written instrument, one copy of which instrument
shall be delivered to the Fiscal Agent so removed, one copy to the successor
Fiscal Agent, and one copy to each of the Trustee, the Master Servicer and the
Rating Agencies. In all such cases, the Fiscal Agent shall bear all costs of
transfer to a successor Fiscal Agent, such succession only to take effect after
a successor Fiscal Agent has been appointed. In the case of the initial Fiscal
Agent, the Depositor may, but is not required to, also remove the Trustee. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be eligible in
accordance with the provisions of Section 7.5(b) and shall fail to resign after
written request therefor by the Depositor, (ii) the Paying Agent shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of the Paying Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust or
any REMIC Pool by any state in which the Paying Agent is located solely because
of the location of the Paying Agent in such state; provided, however, that, if
the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), or (iv) the continuation of the Paying
Agent as such would result in a downgrade, qualification or withdrawal, as
applicable, of the rating by the Rating Agencies of any Class of Certificates
with a rating as evidenced in writing by the Rating Agencies, then the
Depositor or the Trustee shall send a written notice of termination to the
Paying Agent (which notice shall specify the reason for such termination) and
remove such Paying Agent and the Depositor shall appoint a successor Paying
Agent by written instrument, one copy of which instrument shall be delivered to
the Paying Agent so removed, one copy to the successor Paying Agent, and one
copy to each of the Trustee, the Master Servicer and the Rating Agencies. In
all such cases, the Paying Agent shall bear all costs of transfer to a
successor Paying Agent, such succession only to take effect after a successor
Paying Agent has been appointed.
(e) The Holders of more than 50% of the Aggregate Certificate Balance of
the Certificates then outstanding may for cause upon 30 days' written notice to
the Trustee, the Fiscal Agent or the Paying Agent, as the case may be, and to
the Depositor remove the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, by such written instrument, signed by such Holders or their
attorney-in-fact duly authorized, one copy of which instrument shall be
delivered to the Depositor and one copy to the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, so removed; the Depositor shall thereupon use
its best efforts to appoint a successor Trustee or Fiscal Agent or the Paying
Agent, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, and appointment of a successor trustee,
fiscal agent or paying agent pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor trustee,
fiscal agent or paying agent, as the case may be, as provided in Section 7.7.
Upon any succession of the Trustee, the Fiscal Agent or the Paying Agent under
this Agreement, the predecessor Trustee, Fiscal Agent or Paying Agent, as the
case may be, shall be entitled to the payment of compensation and reimbursement
agreed to under this
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Agreement for services rendered and expenses incurred. The Trustee, the Fiscal
Agent or the Paying Agent shall not be liable for any action or omission of any
successor Trustee, Fiscal Agent or Paying Agent, as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent appointed as
provided in Section 7.6 shall execute, acknowledge and deliver to the Depositor
and to its predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee, Fiscal Agent or Paying
Agent, as the case may be, shall become effective and such successor Trustee,
Fiscal Agent or Paying Agent, as the case may be, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties
and obligations of its predecessor hereunder, with like effect as if originally
named as Trustee, Fiscal Agent or Paying Agent herein. The predecessor Trustee,
Fiscal Agent or Paying Agent shall deliver (at such predecessor's own expense)
to the successor Trustee, Fiscal Agent or Paying Agent all Mortgage Files and
documents and statements related to the Mortgage Files held by it hereunder,
and the predecessor Trustee shall duly assign, transfer, deliver and pay over
(at such predecessor's own expense) to the successor Trustee, the entire Trust,
together with all instruments of transfer and assignment or other documents
properly executed necessary to effect such transfer. The predecessor Trustee,
Fiscal Agent or Paying Agent, as the case may be, shall also deliver all
records or copies thereof maintained by the predecessor Trustee, Fiscal Agent
or Paying Agent in the administration hereof as may be reasonably requested by
the successor Trustee, Fiscal Agent or Paying Agent, as applicable, and shall
thereupon be discharged from all duties and responsibilities under this
Agreement. In addition, the Depositor and the predecessor Trustee, Fiscal Agent
or Paying Agent shall execute and deliver such other instruments and do such
other things as may reasonably be required to more fully and certainly vest and
confirm in the successor Trustee, Fiscal Agent or Paying Agent, as the case may
be, all such rights, powers, duties and obligations. Anything herein to the
contrary notwithstanding, in no event shall the combined fees payable to a
successor Trustee exceed the Trustee Fee.
(b) No successor Trustee, Fiscal Agent or Paying Agent shall accept
appointment as provided in this Section unless at the time of such appointment
such successor Trustee, Fiscal Agent or Paying Agent, as the case may be, shall
be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee, Fiscal Agent or
Paying Agent as provided in this Section, the successor Trustee, Fiscal Agent
or Paying Agent shall mail notice of the succession of such Trustee, Fiscal
Agent or Paying Agent hereunder to all Holders of Certificates at their
addresses as shown in the Certificate Register and to the Rating Agencies. The
expenses of such mailing shall be borne by the successor Trustee, Fiscal Agent
or Paying Agent. If the successor Trustee, Fiscal Agent or Paying Agent fails
to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, Fiscal Agent or Paying Agent, the Master Servicer shall
cause such notice to be mailed at the expense of the successor Trustee, Fiscal
Agent or Paying Agent, as applicable.
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SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT OR PAYING
Agent. Any Person into which the Trustee, Fiscal Agent or Paying Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder,
as applicable, provided that such Person shall be eligible under the provisions
of Section 7.5, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE, AGENTS OR
CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any time, the Trustee,
the Depositor or, in the case of the Trust, the Certificateholders evidencing
more than 50% of the Aggregate Certificate Balance of the Certificates then
outstanding shall each have the power from time to time to appoint one or more
Persons to act either as co-trustees jointly with the Trustee or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any Mortgage Loan outside the state
where the Trustee has its principal place of business where such separate
trustee or co-trustee is necessary or advisable (or the Trustee is advised by
the Master Servicer or Special Servicer that such separate trustee or
co-trustee is necessary or advisable) under the laws of any state in which a
property securing a Mortgage Loan is located or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any state in
which a property securing a Mortgage Loan is located or in any state in which
any portion of the Trust is located. The separate trustees, co-trustees, or
custodians so appointed shall be trustees or custodians for the benefit of all
the Certificateholders, shall have such powers, rights and remedies as shall be
specified in the instrument of appointment and shall be deemed to have accepted
the provisions of this Agreement; provided that no such appointment shall, or
shall be deemed to, constitute the appointee an agent of the Trustee; provided,
further that the Trustee shall be liable for the actions of any co-trustee or
separate trustee appointed by it and shall have no liability for the actions of
any co-trustee or separate trustee appointed by the Depositor or the
Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be, may from time to
time appoint one or more independent third-party agents to perform all or any
portion of its administrative duties hereunder (i.e., collection and
distribution of funds, preparation and dissemination of reports, monitoring
compliance, etc.). The Trustee or the Paying Agent, as the case may be, shall
supervise and oversee such agents appointed by it. The terms of any arrangement
or agreement between the Trustee or the Paying Agent, as the case may be, and
such agent, may be terminated, without cause and without the payment of any
termination fees in the event the Trustee or the Paying Agent, as the case may
be, is terminated in accordance with this Agreement. In addition, neither the
Trust nor the Certificateholders shall have any liability or direct obligation
to such agent. Notwithstanding the terms of any such agreement, the Trustee or
the Paying Agent, as the case may be, shall remain at all times obligated and
liable to the Trust and the Certificateholders for performing its duties
hereunder.
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(c) Every separate trustee, co-trustee, and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Trustee in respect of the receipt, custody and payment of moneys shall be
exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Master Servicer
hereunder) the Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations,
including the holding of title to the Trust or any portion thereof in any
such jurisdiction, shall be exercised and performed by such separate
trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be personally liable by
reason of any act or omission of any other trustee or custodian hereunder;
and
(iv) the Trustee or, in the case of the Trust, the Certificateholders
evidencing more than 50% of the Aggregate Principal Amount of the
Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it
or them, if such resignation or removal does not violate the other terms
of this Agreement.
(d) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at any time,
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
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(g) The Trustee agrees to instruct the co-trustees, if any, to the extent
necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of the co-trustees,
separate trustees or custodians appointed by the Trustee pursuant to this
Section 7.9 to the extent, and in accordance with the standards, specified in
Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent shall not be
unreasonably withheld, the Trustee, at its sole cost and expense, may appoint
at any time a successor Custodian. Until such time as the Trustee appoints a
successor Custodian, the Trustee shall be the Custodian hereunder. Upon the
appointment of a successor custodian, the Trustee and the Custodian shall enter
into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial Authenticating Agent
hereunder for the purpose of executing and authenticating Certificates. Any
successor Authenticating Agent must be acceptable to the Depositor and must be
a corporation or national bank organized and doing business under the laws of
the United States of America or of any state and having a principal office and
place of business in the Borough of Manhattan in the City and State of New
York, having a combined capital and surplus of at least $50,000,000, authorized
under such laws to do a trust business and subject to supervision or
examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Authenticating Agent shall
be a party, or any Person succeeding to the corporate agency business of the
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of the Authenticating Agent by
giving written notice of termination to the Authenticating Agent and the
Depositor; provided that the Trustee may not terminate the Paying Agent as
Authenticating Agent unless the Paying Agent shall be removed as Paying Agent
hereunder. Upon receiving a notice of resignation or upon such a termination,
or in case at any time the Authenticating Agent shall cease to be eligible in
accordance with the provisions of Section 7.10(a), the Trustee may appoint a
successor Authenticating Agent, shall give written notice of such appointment
to the Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action
taken by it as such at the direction of the Trustee.
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SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent and each of its respective directors, officers, employees, agents
and Controlling Persons shall be entitled to indemnification from the Trust for
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action incurred without negligence or
willful misconduct on their respective part, arising out of, or in connection
with this Agreement, the Certificates and the acceptance or administration of
the trusts or duties created hereunder (including, without limitation, any
unanticipated loss, liability or expense incurred in connection with any action
or inaction of the Master Servicer, the Special Servicer or the Depositor or of
each other such Person hereunder but only to the extent the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, is
unable to recover within a reasonable period of time such amount from such
third party pursuant to this Agreement) including the costs and expenses of
defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder and the Trustee, the
Fiscal Agent, the Certificate Registrar and the Paying Agent and each of their
respective directors, officers, employees, agents and Controlling Persons shall
be entitled to indemnification from the Trust for any unanticipated loss,
liability or expense incurred in connection with the provision by the Trustee,
the Fiscal Agent, the Certificate Registrar and the Paying Agent of the reports
required to be provided by it pursuant to this Agreement; provided that:
(i) with respect to any such claim, the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, shall
have given the Depositor, the Master Servicer, the Sellers, each other and
the Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Fiscal Agent, the Certificate
Registrar or the Paying Agent, as the case may be, shall have knowledge
thereof; provided, however, that failure to give such notice to the
Depositor, Master Servicer, the Sellers, each other and the Holders of
Certificates shall not affect the Trustee's, Fiscal Agent's, Certificate
Registrar's or Paying Agent's, as the case may be, rights to
indemnification herein unless the Depositor's defense of such claim on
behalf of the Trust is materially prejudiced thereby;
(ii) while maintaining control over its own defense, the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case
may be, shall cooperate and consult fully with the Depositor in preparing
such defense; and
(iii) notwithstanding anything to the contrary in this Section 7.11,
the Trust shall not be liable for settlement of any such claim by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent,
as the case may be, entered into without the prior consent of the
Depositor, which consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any termination of
this Agreement and the resignation or removal of the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be.
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(c) The Depositor shall indemnify and hold harmless the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may
be, their respective directors, officers, employees or agents and Controlling
Persons from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, their
respective directors, officers, employees or agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading and shall reimburse
the Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent,
as the case may be, their respective directors, officers, employees, agents or
Controlling Person for any legal and other expenses reasonably incurred by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as
the case may be, or any such director, officer, employee, agent or Controlling
Person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action; provided, that the Depositor shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission made in any such Private Placement
Memorandum, Preliminary Prospectus Supplement, Final Prospectus Supplement or
Prospectus in reliance upon and in conformity with written information
concerning the Trustee, the Fiscal Agent, the Certificate Registrar or the
Paying Agent, as the case may be, furnished to the Depositor by or on behalf of
such person specifically for inclusion therein. It is hereby expressly agreed
that the only written information provided by the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, for
inclusion in the Preliminary Prospectus Supplement and Final Prospectus
Supplement is set forth in the case of the Trustee in the second, fourth and
fifth sentences and in the case of the Fiscal Agent in the penultimate sentence
under the caption entitled "DESCRIPTION OF THE OFFERED CERTIFICATES--The
Trustee and the Fiscal Agent" and in the case of the Paying Agent, the third
and fourth sentences under the "DESCRIPTION OF THE OFFERED CERTIFICATES--The
Paying Agent, Certificate Registrar and the Authenticating Agent". The Trustee,
the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case
may be, shall immediately notify the Depositor and the Sellers if a claim is
made by a third party with respect to this Section 7.11(c) entitling such
person, its directors, officers, employees, agents or Controlling Person to
indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to such person) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Depositor shall not
affect any rights the Trustee, the Fiscal Agent, the Certificate Registrar or
the Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee,
the Fiscal Agent or the Paying Agent. The Depositor shall not be indemnified by
the
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Trust for any expenses incurred by the Depositor arising from any violation
or alleged violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT. The Trustee shall be entitled to receive the Trustee Fee (other than the
portion thereof constituting the Paying Agent Fee) and the Paying Agent shall
be entitled to receive the Paying Agent Fee, pursuant to Section 5.3(b)(ii)
(which shall not be limited by any provision of law with respect to the
compensation of a trustee of an express trust), for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent shall also be entitled to recover from the Trust all reasonable
unanticipated expenses and disbursements incurred or made by the Trustee, the
Fiscal Agent and the Paying Agent in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and other Persons not regularly in
its employ), not including expenses incurred in the ordinary course of
performing its duties as Trustee, Fiscal Agent or Paying Agent, respectively
hereunder, and except any such expense, disbursement or advance as may arise
from the negligence or bad faith of such Person or which is the responsibility
of the Holders of the Certificates hereunder. The provisions of this Section
7.12 shall survive any termination of this Agreement and the resignation or
removal of the Trustee, the Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise expressly provided
in this Agreement, the Trustee and the Paying Agent may demand payment or
delivery of, and shall receive and collect, all money and other property
payable to or receivable by the Trustee or the Paying Agent, as the case may
be, pursuant to this Agreement. The Trustee or the Paying Agent, as the case
may be, shall hold all such money and property received by it as part of the
Trust and shall distribute it as provided in this Agreement. If the Trustee or
the Paying Agent, as the case may be, shall not have timely received amounts to
be remitted with respect to the Mortgage Loans from the Master Servicer, the
Trustee or the Paying Agent, as the case may be, shall request the Master
Servicer to make such distribution as promptly as practicable or legally
permitted. If the Trustee or the Paying Agent, as the case may be, shall
subsequently receive any such amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated pursuant to
this Agreement, the Trustee shall be the successor in all respects to the
Master Servicer in its capacity under this Agreement and the transactions set
forth or provided for therein and shall have all the rights and powers and be
subject to all the responsibilities, duties and liabilities relating thereto
and arising thereafter placed on the Master Servicer by the terms and
provisions of this Agreement; provided that, any failure to perform such duties
or responsibilities caused by the Master Servicer's failure to provide required
information shall not be considered a default by the Trustee hereunder. In
addition, the Trustee shall have no liability relating to (i) the
representations and warranties of the Master Servicer contained in this
Agreement or (ii) any obligation incurred by the Master Servicer prior to its
termination or resignation (including, without limitation, the Master
Servicer's obligation to repay losses resulting from the investment
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of funds in any account established under this Agreement), except any ongoing
obligations to the Primary Servicers arising after the termination of the
Master Servicer from their servicing rights and obligations under the
applicable Primary Servicing Agreement. In the Trustee's capacity as such
successor, the Trustee shall have the same limitations on liability granted to
the Master Servicer in this Agreement. As compensation therefor, the Trustee
shall be entitled to receive all the compensation payable to the Master
Servicer set forth in this Agreement, including, without limitation, the Master
Servicing Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the Trustee is
unwilling to so act, or (B) shall, if it is unable to so act, appoint, or
petition a court of competent jurisdiction to appoint any established
commercial or multifamily mortgage finance institution, servicer or special
servicer or mortgage servicing institution having a net worth of not less than
$15,000,000, meeting such other standards for a successor servicer as are set
forth in this Agreement and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Master Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a servicer as Master
Servicer hereunder. Pending any such appointment, the Trustee shall act in such
capacity as hereinabove provided. Any entity designated by the Trustee as
successor Master Servicer may be an Affiliate of the Trustee; provided that,
such Affiliate must meet the standards for the Master Servicer as set forth
herein. In connection with such appointment and assumption, the Trustee may
make such arrangements for the compensation of such successor out of payments
on Mortgage Loans as it and such successor shall agree subject to Section 8.10.
The Trustee and such successor shall take such actions, consistent with this
Agreement as shall be necessary to effectuate any such succession. The Master
Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of
the assignment of the servicing function and providing the Trustee and
successor servicer all documents and records in its possession in electronic or
other form reasonably requested by the successor servicer to enable the
successor servicer to assume the Master Servicer's functions hereunder and the
transfer to the Trustee or such successor servicer of all amounts which shall
at the time be or should have been deposited by the Master Servicer in the
Certificate Account and any other account or fund maintained with respect to
the Certificates or thereafter be received by the Master Servicer with respect
to the Mortgage Loans. Neither the Trustee nor any other successor servicer
shall be deemed to be in default hereunder by reason of any failure to make, or
any delay in making, any distribution hereunder or any portion thereof caused
by (i) the failure of the Master Servicer to deliver, or any delay in
delivering, cash, documents or records to it, or (ii) restrictions imposed by
any regulatory authority having jurisdiction over the Master Servicer. The
Trustee shall be reimbursed for all of its out-of-pocket expenses incurred in
connection with obtaining such successor Master Servicer by the Trust within 30
days of the Trustee's submission of an invoice with respect thereto, to the
extent such expenses have not been reimbursed by the Master Servicer as
provided herein; such expenses paid by the Trust shall be deemed to be an
Additional Trust Expense.
(c) On and after the time the Special Servicer is terminated pursuant to
this Agreement, in accordance with Section 9.30, the Trustee shall be the
successor in all respects to the Special Servicer in its capacity under this
Agreement and the transactions set forth or provided for therein and shall have
all the rights and powers and be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on the Special
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Servicer by the terms and provisions of this Agreement; provided that, any
failure to perform such duties or responsibilities caused by the Special
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Special
Servicer contained in this Agreement or (ii) any obligation incurred by the
Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation (other than any Work-Out Fee
payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the Trustee shall be
unwilling to so act, or shall, if it is unable to so act, appoint, or petition
a court of competent jurisdiction to appoint, any established commercial or
multifamily mortgage finance institution, special servicer or mortgage
servicing institution having a net worth of not less than $15,000,000, and
meeting such other standards for a successor Special Servicer as are set forth
in Section 9.21, and with respect to which Rating Agency Confirmation is
obtained, as the successor to the Special Servicer hereunder in the assumption
of all of the responsibilities, duties or liabilities of a special servicer as
Special Servicer hereunder. Pending any such appointment, the Trustee shall act
in such capacity as hereinabove provided. Any entity designated by the Trustee
as successor Special Servicer may be an Affiliate of the Trustee; provided
that, such Affiliate must meet the standards for a successor Special Servicer
set forth herein. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out
of payments on Mortgage Loans as it and such successor shall agree; provided
that no such compensation shall be in excess of that permitted to the Special
Servicer under this Agreement. The Trustee and such successor shall take such
actions, consistent with this Agreement as shall be necessary to effectuate any
such succession. The Special Servicer shall cooperate with the Trustee and any
successor Special Servicer in effecting the termination of the Special
Servicer's responsibilities and rights under this Agreement, including, without
limitation, notifying Mortgagors of Specially Serviced Mortgage Loans of the
assignment of the special servicing function and providing the Trustee and
successor Special Servicer all documents and records in its possession in
electronic or other form reasonably requested by the successor Special Servicer
to enable the successor Special Servicer to assume the Special Servicer's
functions hereunder and the transfer to the Trustee or such successor Special
Servicer of all amounts which shall at the time be or should have been
deposited by the Special Servicer in the Certificate Account and any other
account or fund maintained with respect to the Certificates or thereafter be
received by the Special Servicer with respect to the Mortgage Loans. Neither
the Trustee nor any other successor Special Servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Special Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Special Servicer. The Trustee shall be reimbursed for all
of its out-of-pocket expenses incurred in connection with obtaining such
successor Special Servicer by the Trust within 30 days of submission of an
invoice with respect thereto but only to the extent such expenses have not been
reimbursed by the Special Servicer as provided herein; and such expenses paid
by the Trust shall be deemed to be an Additional Trust Expense.
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SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the Master
Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at
their respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE, THE FISCAL
AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the date hereof that:
(i) the Trustee is a national banking association, duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full power and authority to own its
property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of this Agreement have
been duly authorized by all necessary action on the part of the Trustee;
neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated in this Agreement, nor compliance with
the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties that would materially and adversely affect the
Trustee's ability to perform its obligations under this Agreement, (ii)
the organizational documents of the Trustee, or (iii) the terms of any
material agreement or instrument to which the Trustee is a party or by
which it is bound; the Trustee is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the Trustee of this
Agreement and the consummation of the transactions contemplated by this
Agreement do not require the consent, approval, authorization or order of,
the giving of notice to or the registration with any state, federal or
other governmental authority or agency, except such as has been or will be
obtained, given, effected or taken in order for the Trustee to perform its
obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's knowledge,
threatened, against the Trustee that, either in one instance or in the
aggregate, would draw into question the validity
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of this Agreement, or which would be likely to impair materially the
ability of the Trustee to perform under the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of the date hereof
that:
(i) the Fiscal Agent is a foreign banking corporation duly organized,
validly existing and in good standing under the laws governing its
creation and existence and has full corporate power and authority to own
its property, to carry on its business as presently conducted, and to
enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent of this Agreement
have been duly authorized by all necessary corporate action on the part of
the Fiscal Agent; neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated in this Agreement,
nor compliance with the provisions of this Agreement, will conflict with
or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Fiscal Agent or its properties that would materially
and adversely affect the Fiscal Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Fiscal
Agent, or (iii) the terms of any material agreement or instrument to which
the Fiscal Agent is a party or by which it is bound; the Fiscal Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Fiscal Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to, or the registration with, any state,
federal or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and delivered by the
Fiscal Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Fiscal Agent, enforceable against the Fiscal Agent in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal Agent's knowledge,
threatened, against the Fiscal Agent that, either in any one instance or
in the aggregate, would draw into question the validity of this Agreement,
or which would be likely to impair materially the ability of the Fiscal
Agent to perform under the terms of this Agreement.
(c) The Paying Agent hereby represents and warrants as of the date hereof
that:
(i) the Paying Agent is a national banking association, duly
organized, validly existing and in good standing under the laws governing
its creation and
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existence and has full power and authority to own its property, to carry
on its business as presently conducted, and to enter into and perform its
obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent of this Agreement
have been duly authorized by all necessary action on the part of the
Paying Agent; neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or
result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or
order binding on the Paying Agent or its properties that would materially
and adversely affect the Paying Agent's ability to perform its obligations
under this Agreement, (ii) the organizational documents of the Paying
Agent, or (iii) the terms of any material agreement or instrument to which
the Paying Agent is a party or by which it is bound; the Paying Agent is
not in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or other
governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the Paying Agent of
this Agreement and the consummation of the transactions contemplated by
this Agreement do not require the consent, approval, authorization or
order of, the giving of notice to or the registration with any state,
federal or other governmental authority or agency, except such as has been
or will be obtained, given, effected or taken in order for the Paying
Agent to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and delivered by the
Paying Agent and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Paying Agent, enforceable against the Paying Agent in accordance with
its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting creditors' rights generally as from time to time in effect, and
to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding pending or, to the best
of the Paying Agent's knowledge, threatened, against the Paying Agent
that, either in one instance or in the aggregate, would draw into question
the validity of this Agreement, or which would be likely to impair
materially the ability of the Paying Agent to perform under the terms of
this Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of the
Trustee, the Fiscal Agent and the Paying Agent, at its own respective expense,
shall maintain in effect a Fidelity Bond and a Errors and Omissions Insurance
Policy. The Errors and Omissions Insurance Policy and Fidelity Bond shall be
issued by a Qualified Insurer in form and in amount customary for trustees,
fiscal agents or paying agents in similar transactions (unless the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, self insures as provided
below). In the event that any such Errors and Omissions Insurance Policy or
Fidelity Bond ceases to be in effect, the Trustee, the Fiscal Agent or the
Paying Agent, as the case may be, shall obtain a
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comparable replacement policy or bond from an insurer or issuer meeting the
requirements set forth above as of the date of such replacement. So long as the
long-term debt rating of the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, is not less than "BBB" as rated by S&P, if rated by S&P, and
"Baa1" as rated by Xxxxx'x, if rated by Xxxxx'x, respectively, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, may self-insure for the
Fidelity Bond and the Errors and Omissions Insurance Policy.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement, for and on behalf
of the Trust and for the benefit of the Certificateholders as a whole, and,
solely as it relates to any A/B Mortgage Loan, for the benefit of the holder of
the related B Note, the Master Servicer shall service and administer the
Mortgage Loans and any B Note in accordance with the Servicing Standard and the
terms of this Agreement (subject to the servicing of the Pari Passu Loan by the
2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer in accordance with
the 2001-TOP3 Pooling and Servicing Agreement). Certain of the provisions of
this Article VIII make explicit reference to their applicability to Mortgage
Loans and any B Note; notwithstanding such explicit references, references to
"Mortgage Loans" contained in this Article VIII, unless otherwise specified,
shall be construed to refer also to such B Note (but any other terms that are
defined in Article I and used in this Article VIII shall be construed according
to such definitions without regard to this sentence).
In connection with such servicing and administration, the Master Servicer
shall seek to maximize the timely recovery of principal and interest on the
Mortgage Notes in the best economic interests of the Certificateholders as a
whole (or, in the case of any A/B Mortgage Loan, the Certificateholders and the
holder of the related B Note, all taken as a collective whole); provided,
however, that nothing herein contained shall be construed as an express or
implied guarantee by the Master Servicer of the collectability of payments on
the Mortgage Loans or shall be construed as impairing or adversely affecting
any rights or benefits specifically provided by this Agreement to the Master
Servicer, including with respect to Master Servicing Fees or the right to be
reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified in clause
(x) of this subclause (b), and the Special Servicer, in the case of an event
specified in clause (y) of this subclause (b), shall each send a written notice
to the other and to the Trustee and the Paying Agent, the Operating Adviser and
each Seller within two Business Days after becoming aware (x) that a Servicing
Transfer Event has occurred with respect to a Mortgage Loan or (y) that a
Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice shall
identify the applicable Mortgage Loan and, in the case of an event specified in
clause (x) of this subclause (b) above, the Servicing Transfer Event that
occurred.
(c) With respect to each Mortgage Loan that is subject to an Environmental
Insurance Policy, for as long as it is not a Specially Serviced Mortgage Loan,
if the Master
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Servicer has actual knowledge of any event giving rise to a claim
under an Environmental Insurance Policy, the Master Servicer or the applicable
Primary Servicer shall notify the Special Servicer to such effect and the
Master Servicer shall take reasonable actions as are in accordance with the
Servicing Standard and the terms and conditions of such Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust is entitled thereunder. Any legal fees or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim shall be paid by, and reimbursable to, the Master Servicer as a
Servicing Advance.
(d) In connection with any extension of the Maturity Date of a Mortgage
Loan, the Master Servicer shall give prompt written notice of such extension to
the insurer under the Environmental Insurance Policy and shall execute such
documents as are reasonably required by such insurer to procure an extension of
such policy (if available).
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE POLICY
MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions
Insurance Policy. The Servicer Errors and Omissions Insurance Policy and
Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or
bond from an insurer or issuer meeting the requirements set forth above as of
the date of such replacement. So long as the long-term rating of the Master
Servicer is not in any event less than "BBB" as rated by S&P and "Baa1" as
rated by Xxxxx'x, respectively, the Master Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Errors and Omissions Insurance Policy.
SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the Mortgage Loans
and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article XII hereof and
as otherwise provided herein and by the Code, have full power and authority to
do any and all things which it may deem necessary or desirable in connection
with such servicing and administration in accordance with the Servicing
Standard. To the extent consistent with the foregoing and subject to any
express limitations and provisions set forth in this Agreement (and in the case
of any A/B Mortgage Loan, subject to the Intercreditor Agreement, and in the
case of the Pari Passu Loan, subject to the servicing of the Pari Passu Loan by
the 2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer), such power
and authority shall include, without limitation, the right, subject to the
terms hereof, (A) to execute and deliver, on behalf of the Certificateholders
(and in connection with any B Note, the holder of the B Note) and the Trustee,
customary consents or waivers and other instruments and documents (including,
without limitation, estoppel certificates, financing statements, continuation
statements, title endorsements and reports and other documents and instruments
necessary to preserve and maintain the lien on the related Mortgaged Property
and related collateral), (B) to consent to assignments and assumptions or
substitutions, and transfers of interest of any Mortgagor, in each case subject
to and in accordance with the terms of the related Mortgage Loan and Section
8.7, (C) to collect any
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Insurance Proceeds, (D) subject to Section 8.7, to consent to any subordinate
financings to be secured by any related Mortgaged Property to the extent that
such consent is required pursuant to the terms of the related Mortgage or which
otherwise is required, and, subject to Section 8.7, to consent to any mezzanine
debt to the extent such consent is required pursuant to the terms of the
related Mortgage; (E) to consent to the application of any proceeds of
insurance policies or condemnation awards to the restoration of the related
Mortgaged Property or otherwise and to administer and monitor the application
of such proceeds and awards in accordance with the terms of the Mortgage Loan
as the Master Servicer deems reasonable under the circumstances, (F) to execute
and deliver, on behalf of the Certificateholders (and, if applicable, the
holder of the B Note) and the Trustee, documents relating to the management,
operation, maintenance, repair, leasing and marketing of the related Mortgaged
Properties, including agreements and requests by the Mortgagor with respect to
modifications of the standards of operation and management of the Mortgaged
Properties or the replacement of asset managers, (G) to consent to any
operation or action under a Mortgage Loan that is contemplated or permitted
under a Mortgage or other documents evidencing or securing the applicable
Mortgage Loan (either as a matter of right or upon satisfaction of specified
conditions), (H) to obtain, release, waive or modify any term other than a
Money Term of a Mortgage Loan and related documents subject to and to the
extent permitted by Section 8.18, (I) to exercise all rights, powers and
privileges granted or provided to the holder of the Mortgage Notes and any B
Note under the terms of the Mortgage, including all rights of consent or
approval thereunder, (J) to enter into lease subordination agreements,
non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's
tenants, (K) to join the Mortgagor in granting, modifying or releasing any
easements, covenants, conditions, restrictions, equitable servitudes, or land
use or zoning requirements with respect to the Mortgaged Properties to the
extent such does not adversely affect the value of the related Mortgage Loan or
Mortgaged Property, (L) to execute and deliver, on behalf of itself, the
Trustee, the Trust (and, if applicable, the holder of the B Note) or any of
them, any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge and all other comparable instruments, with respect to
the Mortgage Loans and with respect to the Mortgaged Properties, and (M) hold
in accordance with the terms of any Mortgage Loan and this Agreement,
Defeasance Collateral. Notwithstanding the above, the Master Servicer shall
have no power to (i) waive any Prepayment Premiums or (ii) consent to any
modification of a Money Term of a Mortgage Loan. Nothing contained in this
Agreement shall limit the ability of the Master Servicer to lend money to (to
the extent not secured, in whole or in part, by any Mortgaged Property), accept
deposits from and otherwise generally engage in any kind of business or
dealings with any Mortgagor as though the Master Servicer was not a party to
this Agreement or to the transactions contemplated hereby; provided, however,
that this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service and administer
the Mortgage Loans which have become and continue to be Specially Serviced
Mortgage Loans, except as specifically provided herein. The Master Servicer
shall be required to make all calculations and prepare all reports required
hereunder with respect to such Specially Serviced Mortgage Loans (other than
calculations and reports expressly required to be made by the Special Servicer
hereunder) as if no Servicing Transfer Event had occurred and shall continue to
collect all Scheduled Payments, make Servicing Advances as set forth herein,
make P&I Advances (but not on any B Note) as set forth herein and render such
incidental services with respect to such Specially Serviced Mortgage Loans, all
as are specifically provided for herein,
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but shall have no other servicing or other duties with respect to such
Specially Serviced Mortgage Loans. The Master Servicer shall give notice within
three Business Days to the Special Servicer of any collections it receives from
any Specially Serviced Mortgage Loans, subject to changes agreed upon from time
to time by the Special Servicer and the Master Servicer. The Special Servicer
shall instruct within one Business Day after receiving such notice the Master
Servicer on how to apply such funds. The Master Servicer within one Business
Day after receiving such instructions shall apply such funds in accordance with
the Special Servicer's instructions. Each Mortgage Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until such Mortgage
Loan becomes a Rehabilitated Mortgage Loan. The Master Servicer shall not be
required to initiate extraordinary collection procedures or legal proceedings
with respect to any Mortgage Loan or to undertake any pre-foreclosure
procedures.
(c) Concurrently with the execution of this Agreement, the Trustee will
sign the Power of Attorney attached hereto as Exhibit S-1. The Master Servicer,
shall promptly notify the Trustee of the execution and delivery of any document
on behalf of the Trustee under such Power-of-Attorney. From time to time until
the termination of the Trust, upon receipt of additional unexecuted powers of
attorney from the Master Servicer or the Special Servicer, the Trustee shall
execute and return to the Master Servicer, the Special Servicer or any of the
Primary Servicers any additional powers of attorney and other documents
necessary or appropriate to enable the Master Servicer and the Special Servicer
to service and administer the Mortgage Loans including, without limitation,
documents relating to the management, operation, maintenance, repair, leasing
or marketing of the Mortgaged Properties. The Master Servicer shall indemnify
the Trustee for any costs, liabilities and expenses (including attorneys' fees)
incurred by the Trustee in connection with the intentional or negligent misuse
of such power of attorney by the Master Servicer. Notwithstanding anything
contained herein to the contrary, neither the Master Servicer nor the Special
Servicer shall without the Trustee's written consent: (i) initiate any action,
suit or proceeding solely under the Trustee's name without indicating the
Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) knowingly take any action that causes the Trustee to be
registered to do business in any state, provided, however, that the preceding
clause (i) shall not apply to the initiation of actions relating to a Mortgage
Loan that the Master Servicer or the Special Servicer, as the case may be, is
servicing pursuant to its respective duties herein (in which case the Master
Servicer or the Special Servicer, as the case may be, shall give three (3)
Business Days prior notice to the Trustee of the initiation of such action).
The limitations of the preceding clause shall not be construed to limit any
duty or obligation imposed on the Trustee under any other provision of this
Agreement.
(d) The Master Servicer shall make efforts consistent with the Servicing
Standard and the terms of this Agreement to collect all payments called for
under the terms and provisions of the applicable Mortgage Loans (other than
Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or the Primary Servicers on its behalf) shall
segregate and hold all funds collected and received pursuant to any Mortgage
Loan (other than the Pari Passu Loan) constituting Escrow Amounts separate and
apart from any of its own funds and general assets and shall establish and
maintain one or more segregated custodial accounts (each, an "Escrow Account")
into which all Escrow Amounts shall be deposited within one (1) Business Day
after receipt. Each Escrow Account shall be an Eligible Account, except with
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respect to Mortgage Loans identified on Schedule VI for which Escrow Accounts
shall be transferred to Eligible Accounts at the earliest date permitted under
the related Mortgage Loan documents. The Master Servicer shall also deposit
into each Escrow Account any amounts representing losses on Eligible
Investments pursuant to the immediately succeeding paragraph and any Insurance
Proceeds or Liquidation Proceeds which are required to be applied to the
restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Each Escrow Account shall be maintained in accordance with the
requirements of the related Mortgage Loan and in accordance with the Servicing
Standard. Withdrawals from an Escrow Account may be made only:
(i) to effect timely payments of items constituting Escrow Amounts
for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account (or any sub-account
thereof) to reimburse the Master Servicer for any Advance relating to
Escrow Amounts, but only from amounts received with respect to the related
Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related Mortgagor any interest or
investment income earned on funds deposited in the Escrow Account if such
income is required to be paid to the related Mortgagor under applicable
law or by the terms of the Mortgage Loan, or otherwise to the Master
Servicer; and
(vi) to remove any funds deposited in a Escrow Account that were not
required to be deposited therein or to refund amounts to the Mortgagors
determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master Servicer
may direct any depository institution or trust company in which the Escrow
Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its
own funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of
such loss. The Master Servicer shall not direct the investment of funds held in
any Escrow Account and retain the income and gain realized therefrom if the
terms of the related Mortgage Loan or applicable law permit the Mortgagor to be
entitled to the income and gain realized from the investment of funds deposited
therein, and the Master Servicer shall not be required to invest amounts on
deposit in Escrow Accounts in Eligible Investments or Eligible Accounts to the
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extent that the Master Servicer is required by either law or under the terms of
any related Mortgage Loan to deposit or invest (or the Mortgagor is entitled to
direct the deposit or investment of) such amounts in another type of
investments or accounts. In the event the Master Servicer is not entitled to
direct the investment of such funds, (1) the Master Servicer shall direct the
depository institution or trust company in which such Escrow Accounts are
maintained to invest the funds held therein in accordance with the Mortgagor's
written investment instructions, if the terms of the related Mortgage Loan or
applicable law require the Master Servicer to invest such funds in accordance
with the Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account
was established, and (ii) the Master Servicer shall have no liability for any
loss in investments of such funds that are invested pursuant to written
instructions from the Mortgagor.
(f) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee and the Paying Agent and to each other under this
Agreement is intended by the parties to be that of an independent contractor
and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the terms of the
related Mortgage Loan, any Lock-Box Agreement or similar agreement, the Master
Servicer shall establish and maintain, in accordance with the Servicing
Standard, one or more lock-box, cash management or similar accounts ("Lock-Box
Accounts") to be held outside the Trust and maintained by the Master Servicer
in accordance with the terms of the related Mortgage. No Lock-Box Account is
required to be an Eligible Account, unless otherwise required pursuant to the
related Mortgage Loan documents. The Master Servicer shall apply the funds
deposited in such accounts in accordance with terms of the related Mortgage
Loan documents, any Lock-Box Agreement and in accordance with the Servicing
Standard.
(h) The Master Servicer or the Primary Servicers on its behalf shall
process all defeasances of Mortgage Loans in accordance with the terms of the
Mortgage Loan documents, and shall be entitled to any fees paid relating
thereto. The Master Servicer shall not permit defeasance (or partial defeasance
if permitted under the Mortgage Loan) of any Mortgage Loan on or before the
second anniversary of the Closing Date unless such defeasance will not result
in an Adverse REMIC Event and the Master Servicer has received an opinion of
counsel to such effect and all items in the following sentence have been
satisfied. Subsequent to the second anniversary of the Closing Date, the Master
Servicer, in connection with the defeasance of a Mortgage Loan shall require
(to the extent it is not inconsistent with the Servicing Standard) that: (i)
the defeasance collateral consists of U.S. Treasury obligations, (ii) the
Master Servicer has determined that the defeasance will not result in an
Adverse REMIC Event, (iii) either (A) the related Mortgagor designates a
Single-Purpose Entity (if the Mortgagor no longer complies) to own the
Defeasance Collateral (subject to customary qualifications) or (B) the Master
Servicer has established a Single-Purpose Entity to hold all Defeasance
Collateral relating to the Defeasance Loans, (iv) the Master Servicer has
requested and received from the Mortgagor (A) an opinion of counsel that the
Trustee will have a perfected, first priority security interest in such
Defeasance Collateral and (B) written confirmation from a firm of independent
accountants
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stating that payments made on such Defeasance Collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan (or the
defeased portion thereof in connection with a partial defeasance) in full on or
before its Maturity Date (or, in the case of the ARD Loan, on or before its
Anticipated Repayment Date) and to timely pay each subsequent Scheduled
Payment, and (v)(A) a Rating Agency Confirmation is received if the Mortgage
Loan has a Principal Balance greater than the lesser of $5,000,000 and 1% of
the Aggregate Certificate Balance (or such higher threshold as shall be
published by S&P), unless such Rating Agency has waived in writing such Rating
Agency Confirmation requirement or (B) if the Mortgage Loan is less than or
equal to both of the amounts set forth in clause (A), either a Notice and
Certification in the form attached hereto as Exhibit Z (or such less
restrictive form as shall be adopted by S&P) or a Rating Agency Confirmation is
received from S&P. Any customary and reasonable out-of-pocket expense incurred
by the Master Servicer pursuant to this Section 8.3(h) shall be paid by the
Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage
Note or other pertinent document, if so allowed by the terms of such documents.
The parties hereto acknowledge that, (a) if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding
the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance of the related Mortgage Loan are insufficient to
reimburse the Trust, or (b) if the Trust incurs any Additional Trust Expense
associated solely with the release of collateral that is not required to be
paid by a Mortgagor pursuant to the related Mortgage Loan documents (and such
Additional Trust Expense is not paid by the Mortgagor), including, but not
limited to, rating agency fees, then in either case the sole obligation of the
related Seller shall be to pay an amount equal to such insufficiency or expense
to the extent the related Mortgagor is not required to pay them. Promptly upon
receipt of notice of such insufficiency or unpaid expense, the Master Servicer
shall request the related Seller to make such payment by deposit to the
Certificate Account.
In the case of a Specially Serviced Mortgage Loan, the Master Servicer
shall process any defeasance of such Specially Serviced Mortgage Loan in
accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special Servicer that the Master Servicer do so,
which request shall be accompanied by a waiver of any condition of defeasance
that an "event of default" under such Specially Serviced Mortgage Loan not have
occurred or be continuing, and the Master Servicer shall be entitled to any
fees paid relating to such defeasance. If such "event of default" is on account
of an uncured payment default, the Special Servicer will process the defeasance
of such Specially Serviced Mortgage Loan, and the Special Servicer shall be
entitled to any fees paid relating to such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan which is secured
by the interest of the related Mortgagor under a ground lease, confirm whether
or not on or prior to the date that is thirty (30) days after the Closing Date,
the Mortgage Loan Seller has notified the related ground lessor of the transfer
of such Mortgage Loan to the Trust pursuant to this Agreement and informed such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer (as evidenced by delivery of a
copy thereof to the Master Servicer). The Master Servicer shall promptly notify
the ground lessor if the Mortgage Loan Seller has failed to do so by the
thirtieth day after the Closing Date.
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(j) Pursuant to the Pari Passu Intercreditor Agreement, the owner of the
Pari Passu Loan has agreed that such owner's rights in, to and under the Pari
Passu Loan are subject to the servicing and all other rights of the 2001-TOP3
Master Servicer and the 2001-TOP3 Special Servicer, and the 2001-TOP3 Master
Servicer and the 2001-TOP3 Special Servicer are authorized and obligated to
service and administer the Pari Passu Loan pursuant to the 2001-TOP3 Pooling
and Servicing Agreement. Notwithstanding anything herein to the contrary, the
parties hereto acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Pari Passu Loan are limited by and subject to the terms of the Pari Passu
Intercreditor Agreement and the rights of the 2001-TOP3 Master Servicer and the
2001-TOP3 Special Servicer with respect thereto under the 2001-TOP3 Pooling and
Servicing Agreement. The Master Servicer shall use reasonable best efforts
consistent with the Servicing Standard to monitor the servicing of the Pari
Passu Loan by the 2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer
pursuant to the 2001-TOP3 Pooling and Servicing Agreement and shall enforce the
rights of the Trustee (as holder of the Pari Passu Loan) under the 2001-TOP3
Pooling and Servicing Agreement. The Master Servicer shall take such actions as
it shall deem reasonably necessary to facilitate the servicing of the Pari
Passu Loan by the 2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer
including, but not limited to, delivering appropriate Requests for Release to
the Trustee and Custodian (if any) in order to deliver any portion of the
related Mortgage File to the 2001-TOP3 Master Servicer or 2001-TOP3 Special
Servicer under the 2001-TOP3 Pooling and Servicing Agreement.
(k) Pursuant to an Intercreditor Agreement, the owner of any B Note has
agreed that the Master Servicer and the Special Servicer are authorized and
obligated to service and administer the B Note pursuant to this Agreement. The
Master Servicer shall be entitled, during any period when the A Note and B Note
under any A/B Mortgage Loan do not constitute Specially Serviced Mortgage
Loans, to exercise the rights and powers granted under the related
Intercreditor Agreement to the "Note A Holder" and/or the "Servicer" referred
to therein. For the avoidance of doubt, the parties acknowledge that neither
the Master Servicer nor the Special Servicer shall be entitled or required to
exercise the rights and powers granted to any "Note B Holder" as defined under
any Intercreditor Agreement.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The parties hereto (A) acknowledge that the Master Servicer has
delegated certain of its obligations and assigned certain of its rights under
this Agreement to each of the Primary Servicers pursuant to the applicable
Primary Servicing Agreements; and (B) agree: (1) in addition to those
obligations specifically delegated by the Master Servicer to each Primary
Servicer under the applicable Primary Servicing Agreement, each Primary
Servicer shall also perform the Master Servicer's obligations set forth in
Section 2.1(d) of this Agreement as such Section relates to the Mortgage Loans
serviced by it; (2) in addition to those rights specifically granted by the
Master Servicer to each Primary Servicer under the applicable Primary Servicing
Agreement, those rights set forth in Section 8.24 hereof accruing to the
benefit of the Master Servicer shall also accrue to the benefit of each Primary
Servicer; (3) any indemnification or release from liability set forth in this
Agreement accruing to the benefit of the Master Servicer shall also, to the
extent applicable, benefit each Primary Servicer; and (4) for each notice,
certification, report, schedule, statement or other type of writing that a
party hereto is obligated
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to deliver to the Master Servicer, such party shall deliver to each Primary
Servicer a copy of such notice, certification, report, schedule, statement or
other type of writing at the time and in the same manner that any of the
foregoing is required to be delivered to the Master Servicer. Notwithstanding
the provisions of any Primary Servicing Agreement or any other provisions of
this Agreement, the Master Servicer shall remain obligated and liable to the
Trustee, the Paying Agent, the Special Servicer, the Certificateholders and the
holder of any B Note for servicing and administering of the Mortgage Loans in
accordance with the provisions of this Agreement to the same extent as if the
Master Servicer was alone servicing and administering the Mortgage Loans. The
Master Servicer or applicable Primary Servicer shall supervise, administer,
monitor, enforce and oversee the servicing of the applicable Mortgage Loans by
any Sub-Servicer appointed by it. The terms of any arrangement or agreement
between the Master Servicer or applicable Primary Servicer and a Sub-Servicer
shall provide that such agreement or arrangement may be terminated, without
cause and without the payment of any termination fees, by the Trustee in the
event such Master Servicer or applicable Primary Servicer is terminated in
accordance with this Agreement or the applicable Primary Servicing Agreement.
In addition, none of the Trustee, the Paying Agent, the Certificateholders or
the holder of any B Note shall have any direct obligation or liability
(including, without limitation, indemnification obligations) with respect to
any Sub-Servicer. The Master Servicer or applicable Primary Servicer shall pay
the costs of enforcement against any of its Sub-Servicers at its own expense,
but shall be reimbursed therefor only (i) from a general recovery resulting
from such enforcement only to the extent that such recovery exceeds all amounts
due in respect of the related Mortgage Loans or (ii) from a specific recovery
of costs, expenses or attorneys fees against the party against whom such
enforcement is directed. Notwithstanding the provisions of any primary
servicing agreement or sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Master Servicer or
applicable Primary Servicer or a Sub-Servicer, or reference to actions taken
through a Sub-Servicer or otherwise, the Master Servicer or applicable Primary
Servicer shall remain obligated and liable to the Trustee, the Paying Agent,
the Special Servicer and the Certificateholders for the servicing and
administering of the applicable Mortgage Loans in accordance with (and subject
to the limitations contained within) the provisions of this Agreement or the
applicable Primary Servicing Agreement without diminution of such obligation or
liability by virtue of indemnification from a Sub-Servicer and to the same
extent and under the same terms and conditions as if the Master Servicer or
applicable Primary Servicer alone were servicing and administering the Mortgage
Loans.
(b) Subject to the limitations of subsection (a), the Master Servicer and
either Primary Servicer may appoint one or more sub-servicers (each, a
"Sub-Servicer") to perform all or any portion of its duties hereunder for the
benefit of the Trustee and the Certificateholders, provided, however, that any
decision or recommendation involving the exercise of a Primary Servicer's
discretion as a "lender" under any loan document with respect to a Mortgage
Loan shall be exercised only by the Primary Servicer and may not be delegated
to a Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing Agreements with
each of the Primary Servicers and shall not terminate such agreements except in
accordance with the terms thereof. To the extent consistent with the rights of
the Primary Servicers under this Agreement and the related Primary Servicing
Agreement, but not in limitation of any other rights granted to the Primary
Servicers in this Agreement and/or in the Primary Servicing Agreements,
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each of the Primary Servicers shall have all of the rights and obligations of a
Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this Agreement to the
contrary, (i) each Primary Servicer's rights and obligations under its
respective Primary Servicing Agreement shall expressly survive a termination of
the Master Servicer's servicing rights under this Agreement; provided that the
applicable Primary Servicing Agreement has not been terminated in accordance
with its provisions; (ii) any successor Master Servicer, including, without
limitation, the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically assume and agree to each of the then
current Primary Servicing Agreements without further action upon becoming the
successor Master Servicer and (iii) this Agreement may not be modified in any
manner which would increase the obligations or limit the rights of a Primary
Servicer hereunder and/or under the applicable Primary Servicing Agreement,
without the prior written consent of such Primary Servicer (which consent shall
not be unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated to a
Primary Servicer under a Primary Servicing Agreement, and such task, right or
obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by the Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the parties
hereto acknowledges and agrees that the Special Servicer is neither a party to
any Primary Servicing Agreement, nor is it bound by any provision of any
Primary Servicing Agreement. The Special Servicer hereby acknowledges the
delegation of rights and duties hereunder by the Master Servicer pursuant to
the provisions of each Primary Servicing Agreement.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master Servicer and any
Primary Servicer and any agent of the Master Servicer or Primary Servicer in
its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Master
Servicer or such agent. Any such interest of the Master Servicer or Primary
Servicer or such agent in the Certificates shall not be taken into account when
evaluating whether actions of the Master Servicer are consistent with its
obligations in accordance with the Servicing Standard regardless of whether
such actions may have the effect of benefiting the Class or Classes of
Certificates owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER INSURANCE, TAXES AND
Other. Subject to the limitations set forth below, the Master Servicer shall
use reasonable efforts consistent with the Servicing Standard to cause the
related Mortgagor to maintain for each Mortgage Loan (other than any REO
Mortgage Loan) (A) a Standard Hazard Insurance Policy 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 REO Mortgage Loan, but,
in any event, in an amount sufficient to avoid the application of any
co-insurance clause and (B) any other insurance
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coverage for a Mortgage Loan which the related Mortgagor is required to
maintain under the related Mortgage, provided the Master Servicer shall not be
required to maintain earthquake insurance on any Mortgaged Property unless such
insurance was required at origination and is available at commercially
reasonable rates; provided, however, that the Special Servicer shall have the
right, but not the duty, to obtain, at the Trust's expense, earthquake
insurance on any Mortgaged Property securing a Specially Serviced Mortgage Loan
or an REO Property so long as such insurance is available at commercially
reasonable rates. If the related Mortgagor does not maintain the insurance set
forth in clauses (A) and (B) above, then the Master Servicer shall cause to be
maintained such insurance with a Qualified Insurer.
Each Standard Hazard Insurance Policy maintained with respect to any
Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special
flood hazard area by the Federal Emergency Management Agency in the Federal
Register, as amended from time to time (to the extent permitted under the
related Mortgage Loan or as required by law), the Master Servicer (with respect
to any Mortgaged Property that is not an REO Property) shall cause flood
insurance to be maintained. Such flood insurance shall be in an amount equal to
the lesser of (i) the unpaid principal balance of the related Mortgage Loan or
(ii) the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall
be deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees but not
internal costs and expenses of obtaining such insurance) incurred by the Master
Servicer in maintaining any insurance pursuant to this Section 8.6 shall not,
for the purpose of calculating monthly distributions to the Certificateholders
or remittances to the Paying Agent for their benefit, be added to the Principal
Balance of the Mortgage Loan, notwithstanding that the terms of the Mortgage
Loan permit such cost to be added to the outstanding Principal Balance thereof.
Such costs shall be paid as a Servicing Advance by the Master Servicer, subject
to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no obligation
beyond using its reasonable efforts consistent with the Servicing Standard to
enforce such insurance requirements. Furthermore, the Master Servicer shall not
be required in any event to maintain or obtain insurance coverage beyond what
is reasonably available at a cost customarily acceptable and consistent with
the Servicing Standard.
The Master Servicer shall conclusively be deemed to have satisfied its
obligations as set forth in this Section 8.6 either (i) if the Master Servicer
shall have obtained and maintained a master force placed or blanket insurance
policy insuring against hazard losses on all of the applicable Mortgage Loans
serviced by it, it being understood and agreed that such policy may contain a
deductible clause on terms substantially equivalent to those commercially
available and maintained by comparable servicers consistent with the Servicing
Standard, and provided that such policy is issued by a Qualified Insurer or
(ii) if the Master Servicer, provided that its long-
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term rating is not less than "A-" by S&P and "A2" by Xxxxx'x, self-insures for
its obligations as set forth in the first paragraph of this Section 8.6. In the
event that the Master Servicer shall cause any Mortgage Loan to be covered by
such a master force placed or blanket insurance policy, the incremental cost of
such insurance allocable to such Mortgage Loan (i.e., other than any minimum or
standby premium payable for such policy whether or not any Mortgage Loan is
then covered thereby), if not borne by the related Mortgagor, shall be paid by
the Master Servicer as a Servicing Advance. If such policy contains a
deductible clause, the Master Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 8.6 and there shall have been a loss that would have been covered by
such policy, deposit in the Certificate Account the amount not otherwise
payable under such master force placed or blanket insurance policy because of
such deductible clause to the extent that such deductible exceeds (i) the
deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with respect
to insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the Master Servicer agrees to present, on its behalf and on
behalf of the Trustee, claims under any such master force placed or blanket
insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall maintain
accurate records with respect to each related Mortgaged Property reflecting the
status of taxes, assessments and other similar items that are or may become a
lien on the related Mortgaged Property and the status of insurance premiums
payable with respect thereto. From time to time, the Master Servicer (other
than with respect to REO Mortgage Loans) shall (i) obtain all bills for the
payment of such items (including renewal premiums), and (ii) except in the case
of Mortgage Loans under which Escrow Amounts are not held by the Master
Servicer, effect payment of all such bills, taxes and other assessments with
respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts as
allowed under the terms of the related Mortgage Loan. If a Mortgagor fails to
make any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer in accordance with the Servicing Standard shall use
its reasonable efforts to pay as a Servicing Advance the amount necessary to
effect the payment of any such item prior to such penalty or termination date,
subject to Section 4.4 hereof. No costs incurred by the Master Servicer, the
Trustee or the Fiscal Agent as the case may be, in effecting the payment of
taxes and assessments on the Mortgaged Properties and related insurance
premiums and ground rents shall, for the purpose of calculating distributions
to Certificateholders, be added to the Principal Balance of the Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans permit such costs to be
added to the outstanding Principal Balances of such Mortgage Loans.
Each of the Master Servicer and the Special Servicer agree that if it
collects Insurance Proceeds or Condemnation Proceeds that relate to Loan No. 53
(Veteran's Plaza) that do not result in the total payment of principal on that
Mortgage Loan, it shall apply the proceeds to the Mortgage Loan on a Due Date
such that all accrued interest through that Due Date is paid, or if it does not
apply the proceeds to the Mortgage Loan on a Due Date, it shall apply the
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proceeds to interest first (including interest that would be due on the Due
Date within the related Collection Period) and then apply the remaining
proceeds to principal.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS;
DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request from a Mortgagor
pursuant to the provisions of any Mortgage Loan (other than a Specially
Serviced Mortgage Loan) that expressly permits, subject to any conditions set
forth in the Mortgage Loan documents, the assignment of the related Mortgaged
Property to, and assumption of such Mortgage Loan by, another Person, the
Master Servicer shall obtain relevant information for purposes of evaluating
such request. For the purpose of the foregoing sentence, the term `expressly
permits' shall include outright permission to assign, permission to assign upon
satisfaction of certain conditions or prohibition against assignment except
upon the satisfaction of stated conditions. If the Master Servicer recommends
to approve such assignment, the Master Servicer shall provide to the Special
Servicer (and solely with respect to any A/B Mortgage Loan, the holder of the B
Note) a copy of such recommendation and the materials upon which such
recommendation is based (which information shall consist of the information to
be included in the Assignment and Assumption Submission to Special Servicer, in
the form attached hereto as Exhibit U) and (A) the Special Servicer shall have
the right hereunder to grant or withhold consent to any such request for such
assignment and assumption in accordance with the terms of the Mortgage Loan and
this Agreement, and the Special Servicer shall not unreasonably withhold such
consent and any such decision of the Special Servicer shall be in accordance
with the Servicing Standard, (B) failure of the Special Servicer to notify the
Master Servicer in writing, within five (5) Business Days following the Master
Servicer's delivery of the recommendation described above and the complete
Assignment and Assumption Submission to Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not permit any such assignment or assumption unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described in the preceding sentence. The Special
Servicer hereby acknowledges the delegation of rights and duties hereunder by
the Master Servicer pursuant to the provisions of each Primary Servicing
Agreement. If the Special Servicer withholds consent pursuant to the provisions
of this Agreement, it shall provide the Master Servicer or any applicable
Primary Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed assignment and assumption, the Master Servicer shall process
such request of the related Mortgagor and shall be authorized to enter into an
assignment and assumption or substitution agreement with the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed, and/or
release the original Mortgagor from liability under the related Mortgage Loan
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the
related Mortgage. To the extent permitted by applicable law, the Master
Servicer shall not enter into such an assumption or substitution agreement
unless the credit status of the prospective new Mortgagor is in
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conformity to the terms of the related Mortgage Loan documents. In making its
recommendation, the Master Servicer shall evaluate such conformity in
accordance with the Servicing Standard. The Master Servicer shall notify the
Trustee, the Paying Agent and the Special Servicer of any assignment and
assumption or substitution agreement executed pursuant to this Section 8.7(a).
Except for any fees payable in connection with the Pari Passu Loan, the Master
Servicer shall be entitled to (as additional servicing compensation) 50% of any
assumption fee collected from a Mortgagor in connection with an assignment and
assumption or substitution of a non-Specially Serviced Mortgage Loan executed
pursuant to this Section 8.7(a) and the Special Servicer shall be entitled to
(as additional special servicing compensation) the other 50% of such fee.
Notwithstanding the foregoing, the Special Servicer acknowledges that the
Master Servicer has delegated certain tasks, rights and obligations to Primary
Servicers with respect to Post Closing Requests (as defined in the Primary
Servicing Agreements) pursuant to Section 8.4 of this Agreement. The Primary
Servicing Agreements classify certain Post Closing Requests as Category 1
Requests (as defined in the Primary Servicing Agreements), in which Primary
Servicer has certain authority to evaluate and process such requests in
accordance with this Agreement, the applicable Primary Servicing Agreement and
applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
applicable Mortgagee under the Mortgage Loan documents, the Primary Servicing
Agreements provide for Master Servicer's determination of materiality of such
condition, term or provision requiring approval or consent and the referral of
such condition, term or provision to a Special Servicer for consent in
accordance with the terms of the Primary Servicing Agreements upon a
determination of materiality. Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicers greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
Neither the Master Servicer nor the Special Servicer shall have any
liability, and shall be indemnified by the Trust for any liability to the
Mortgagor or the proposed assignee, for any delay in responding to requests for
assumption, if the same shall occur as a result of the failure of the Rating
Agencies, or any of them, to respond to such request in a reasonable period of
time.
(b) Other than with respect to the assignment and assumptions referred to
in subsection (a) above, if any Mortgage Loan that is not a Specially Serviced
Mortgage Loan contains a provision in the nature of a "due-on-sale" clause, (i)
provides that such Mortgage Loan shall (or may at the mortgagee's option)
become due and payable upon the sale of the related Mortgaged Property, or (ii)
provides that such Mortgage Loan may not be assumed without the consent of the
related mortgagee in connection with any such sale or other transfer, then, the
review and determination to either (i) enforce such due-on-sale clause or (ii)
if in the best economic interest of the Trust, waive the effect of such
provision, such waiver to be processed in the same manner as in Section 8.7(a);
provided, however, that if the Principal Balance of such Mortgage Loan at such
time equals or exceeds 5% of the Aggregate Certificate Balance or is one of the
then current top 10 loans (by Principal Balance) in the pool, then prior to
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waiving the effect of such provision, the Master Servicer shall obtain Rating
Agency Confirmation regarding such waiver. In connection with the request for
such consent, the Master Servicer shall prepare and deliver to S&P and Xxxxx'x
a memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Master Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, the Paying
Agent and the Trustee, and the Master Servicer shall promptly thereafter
forward such documents to the Rating Agencies. The Special Servicer and the
Master Servicer shall each be entitled to (as additional compensation) 50% of
any fee collected from a Mortgagor in connection with the granting or
withholding such consent (other than any such fee payable in connection with
the Pari Passu Loan).
(c) The Master Servicer shall have the right to consent to any transfers
of an interest of a Mortgagor, to the extent such transfer is allowed under the
terms of the related Mortgage Loan, including any consent to transfer to any
subsidiary or affiliate of Mortgagor or to a person acquiring less than a
majority interest in the Mortgagor; provided, however, that if (i) the
Principal Balance of such Mortgage Loan at such time equals or exceeds 5% of
the Aggregate Certificate Balance or is one of the then current top 10 loans
(by Principal Balance) in the pool, and (ii) the transfer is of an interest in
the Mortgagor greater than 49%, then prior to consenting, the Master Servicer
shall obtain a Rating Agency Confirmation regarding such consent, the costs of
which to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. The Master Servicer shall be entitled to collect and
receive from Mortgagors any customary fees in connection with such transfers of
interest as additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders and the holder
of any B Note shall execute any necessary instruments in the form presented to
it by the Master Servicer (pursuant to subsection (a)) or the Special Servicer
(pursuant to subsection (b)) for such assignments and assumptions agreements.
Upon the closing of the transactions contemplated by such documents, the Master
Servicer or the Special Servicer, as the case may be, shall cause the originals
of the assignment and assumption agreement, the release (if any), or the
modification or supplement to the Mortgage Loan to be delivered to the Trustee
except to the extent such documents have been submitted to the recording
office, in which event the Master Servicer shall promptly deliver copies of
such documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced Mortgage Loan)
which contains a provision in the nature of a "due-on-encumbrance" clause,
which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any additional lien or
other encumbrance on the related Mortgaged Property or a lien on the
ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right
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to exercise) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon, or (y) to withhold its consent to the creation
of any such additional lien or other encumbrance, in a manner consistent with
the Servicing Standard, the following paragraph and Section 8.18 hereof. The
Master Servicer shall not waive the effect of such provision without first
obtaining Rating Agency Confirmation regarding such waiver and complying with
the provisions of the next succeeding paragraph.
Without limiting the generality of the preceding paragraph, in the event
that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the
information to be included in the Additional Lien, Monetary Encumbrance and
Mezzanine Financing Submission Package to the Special Servicer, in the form
attached hereto as Exhibit V) and (A) the Special Servicer shall have the right
hereunder to grant or withhold consent to any such request in accordance with
the terms of the Mortgage Loan and this Agreement, and the Special Servicer
shall not unreasonably withhold such consent and any such decision of the
Special Servicer shall be in accordance with the Servicing Standard, (B)
failure of the Special Servicer to notify the Master Servicer in writing,
within five (5) Business Days following the Master Servicer's delivery of the
recommendation described above and the complete Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package to the Special Servicer
on which the recommendation is based, of its determination to grant or withhold
such consent shall be deemed to constitute a grant of such consent and (C) the
Master Servicer shall not permit any such waiver unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described in the preceding sentence. If the Special Servicer
withholds consent pursuant to the foregoing provisions, it shall provide the
Master Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed waiver, the Master Servicer shall process such request of the
related Mortgagor subject to the other requirements set forth above.
The parties hereto acknowledge that, if the payments described in
paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding
the obligation of a Mortgagor to pay the reasonable costs and expenses of
obtaining any Rating Agency Confirmation in connection with an assumption of
the related Mortgage Loan are insufficient to reimburse the Trust, then it
shall be the sole obligation of the related Seller to pay an amount equal to
such insufficiency to the extent the related Mortgagor is not required to pay
them. Promptly upon receipt of notice of such insufficiency, the Master
Servicer or the Special Servicer, as applicable, shall request the related
Seller to make such payment by deposit to the Certificate Account. The Master
Servicer may not waive such payment by the Mortgagor.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE MORTGAGE FILES. Upon
the payment in full of any Mortgage Loan, the complete defeasance of a Mortgage
Loan, satisfaction or discharge in full of any Specially Serviced Mortgage
Loan, the purchase of an A Note by the holder of a B Note pursuant to the
related Intercreditor Agreement, or the receipt by the Master Servicer of a
notification that payment in full (or such payment, if any, in connection with
the satisfaction and discharge in full of any Specially Serviced Mortgage Loan)
will be
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escrowed in a manner customary for such purposes, and upon notification by the
Master Servicer in the form of a certification (which certification shall
include a statement to the effect that all amounts received or to be received
in connection with such payment which are required to be deposited in the
Certificate Account have been or will be so deposited) of a Servicing Officer
and a request for release of the Trustee Mortgage File in the form of Exhibit C
hereto the Trustee shall promptly release the related Trustee Mortgage File to
the Master Servicer and the Trustee shall execute and deliver to the Master
Servicer the deed of reconveyance or release, satisfaction or assignment of
mortgage or such instrument releasing the lien of the Mortgage, as directed by
the Master Servicer together with the Mortgage Note with written evidence of
cancellation thereon. The provisions of the immediately preceding sentence
shall not, in any manner, limit or impair the right of the Master Servicer to
execute and deliver, on behalf of the Trustee, the Certificateholders, the
holder of any B Note or any of them, any and all instruments of satisfaction,
cancellation or assignment without recourse, representation or warranty, or of
partial or full release or discharge and all other comparable instruments, with
respect to the Mortgage Loans or any B Note, and with respect to the Mortgaged
Properties held for the benefit of the Certificateholders and the holder of any
B Note. No expenses incurred in connection with any instrument of satisfaction
or deed of reconveyance shall be chargeable to the Distribution Account but
shall be paid by the Master Servicer except to the extent that such expenses
are paid by the related Mortgagor in a manner consistent with the terms of the
related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or
total release of any Mortgaged Property from the lien of the Mortgage or the
making of any corrections to the Mortgage Note or the Mortgage or any of the
other documents included in the Trustee Mortgage File, the Trustee shall, upon
request of the Master Servicer and the delivery to the Trustee of a Request for
Release signed by a Servicing Officer, in the form of Exhibit C hereto, release
the Trustee Mortgage File to the Master Servicer or the Special Servicer, as
the case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF MASTER SERVICER
TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the Master Servicer
shall transmit to the Trustee, to the extent required by this Agreement, all
documents and instruments coming into the possession of the Master Servicer
from time to time and shall account fully to the Trustee and the Paying Agent
for any funds received or otherwise collected thereby, including Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Servicer
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer in respect of any Mortgage Loans (or any B Note), whether from
the collection of principal and interest payments or from Liquidation Proceeds
or Insurance Proceeds, including any funds on deposit in the Certificate
Account (or any A/B Loan Custodial Account), shall be held by the Master
Servicer for and on behalf of the Trustee and the Certificateholders (or the
holder of any B Note, as applicable) and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement. The Master Servicer agrees that it shall not create, incur or
subject any Servicer Mortgage Files or Trustee Mortgage File or any funds that
are deposited in the Certificate Account or any Escrow Account, or any funds
that otherwise are or may become due or payable to the Trustee or the Paying
Agent, to any claim, lien, security
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interest, judgment, levy, writ of attachment or other encumbrance, or assert by
legal action or otherwise any claim or right of setoff against any Servicer
Mortgage Files or Trustee Mortgage File or any funds collected on, or in
connection with, a Mortgage Loan, except, however, that the Master Servicer
shall be entitled to receive from any such funds any amounts that are properly
due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to the Master Servicing Fee, which shall be payable by the
Trust from amounts held in the Certificate Account (and from the related A/B
Loan Custodial Account to the extent related solely to a B Note) or otherwise
collected from the Mortgage Loans as provided in Section 5.2. The Master
Servicer shall be required to pay to each Primary Servicer its related Primary
Servicing Fees, which shall be payable by the Trust from amounts as provided in
Section 5.1(c), unless retained by the Primary Servicers from amounts
transferred to the Master Servicer in accordance with the terms of the Primary
Servicing Agreements. The Master Servicer shall be required to pay to the
holders of the rights to the Excess Servicing Fees, the Excess Servicing Fees,
which shall be payable by the Trust as provided in Section 5.1(c), unless
otherwise retained by the holders of such rights. Notwithstanding anything
herein to the contrary, if any of the holders of the right to receive Excess
Servicing Fees resigns or is no longer Master Servicer or Primary Servicer, as
applicable, for any reason, it will continue to have the right to receive its
portion of the Excess Servicing Fee, and any of the holders of the right to
receive Excess Servicing Fees shall have the right to assign its portion of the
Excess Servicing Fee, whether or not it is then acting as Master Servicer or
Primary Servicer hereunder. The Master Servicer shall also be entitled to the
Primary Servicing Fee, which shall be payable by the Trust from amounts held in
the Certificate Account (or a sub-account thereof) or otherwise collected from
the Mortgage Loans as provided in Section 5.2, provided that the Primary
Servicing Fee payable to the Master Servicer shall only be collected from the
Mortgage Loans set forth on Schedule II, Schedule IV and Schedule V, except as
provided in Section 8.28(c).
(b) Additional servicing compensation in the form of assumption fees,
extension fees, servicing fees, default interest (excluding default interest
allocable to any B Note if the holder of the B Note has cured the related
default pursuant to the terms of the Intercreditor Agreement) payable at a rate
above the Mortgage Rate (net of any amount used to pay Advance Interest),
Modification Fees, forbearance fees, Late Fees (net of Advance Interest)
(excluding Late Fees allocable to any B Note if the holder of the B Note has
cured the related default pursuant to the terms of the Intercreditor Agreement)
or other usual and customary charges and fees actually received from Mortgagors
shall be retained by the Master Servicer, provided that the Master Servicer
shall be entitled to (i) receive 50% of assumption fees collected on Mortgage
Loans as provided in Section 8.7(a), (ii) Modification Fees as provided in
Section 8.18 hereof; and (iii) 100% of any extension fees collected from the
related Mortgagor in connection with the extension of the Maturity Date of any
Mortgage Loan as provided in Section 8.18; provided, however, that the Master
Servicer shall not be entitled to any such fees in connection with any
Specially Serviced Mortgage Loans or the Pari Passu Loan. If the Master
Servicer collects any amount payable to the Special Servicer hereunder in
connection with an REO Mortgage Loan or Specially Serviced Mortgage Loan, the
Master Servicer shall promptly remit such amount to the
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Special Servicer as provided in Section 5.2. The Master Servicer shall be
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, the Master Servicing Fee
for each monthly period relating to each Determination Date shall be reduced by
an amount equal to the Compensating Interest (if any) relating to Mortgage
Loans which are not Specially Serviced Mortgage Loans for such Determination
Date.
(d) The Master Servicer shall also be entitled to additional servicing
compensation of (i) an amount equal to the excess, if any, of the aggregate
Prepayment Interest Excess relating to Mortgage Loans which are not Specially
Serviced Mortgage Loans for each Distribution Date over the aggregate
Prepayment Interest Shortfalls for such Mortgage Loans for such Distribution
Date, (ii) interest or other income earned on deposits in the Certificate
Account and the Distribution Account (but only to the extent of the net
investment earnings, if any, with respect to each such account), and, (iii) to
the extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer shall deliver to
the Paying Agent, no later than 5:00 p.m., New York City time, on the related
Report Date, the Master Servicer Remittance Report with respect to such
Distribution Date including any information regarding prepayments made pursuant
to Section 5.2(b) and (ii) the Master Servicer shall report to the Paying Agent
on the related Advance Report Date, the amount of P&I Advance to be made by the
Master Servicer on the related Master Servicer Remittance Date. The Special
Servicer is required to provide all applicable information relating to
Specially Serviced Mortgage Loans in order for the Master Servicer to satisfy
its duties in this Section 8.11. The Master Servicer Remittance Report shall be
updated (and delivered to the Paying Agent as updated) no later than 2 p.m. on
the second Business Day prior to the Distribution Date to reflect any payment
on a Mortgage Loan for which the Scheduled Payment is paid on a Due Date (or
within its grace period) that occurs after the end of the related Collection
Period.
(b) The Master Servicer shall deliver to the Trustee, the Paying Agent,
the Swap Counterparty and the Special Servicer within 30 days following each
Distribution Date a statement setting forth the status of the Certificate
Account as of the close of business on such Distribution Date showing, for the
period covered by such statement, the aggregate of deposits in or withdrawals
from the Certificate Account, and shall deliver to each holder of a B Note
within 30 days following each Distribution Date a statement setting forth the
status of the related A/B Loan Custodial Account as of the close of business on
such Distribution Date showing, for the period covered by such statement, the
aggregate of transfers in and transfers from or deposits in or withdrawals from
such A/B Loan Custodial Account.
(c) The Master Servicer shall promptly inform the Special Servicer of the
name, account number, location and other necessary information concerning the
Certificate Account in order to permit the Special Servicer to make deposits
therein.
(d) Reserved
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(e) The Master Servicer shall deliver a copy of any reports or information
delivered to the Trustee or the Paying Agent pursuant to subsection (a) or
subsection (b) of this Section 8.11 to the Depositor, the Special Servicer, the
Operating Adviser and each Rating Agency, in each case upon request by such
Person and only to the extent such reports and information are not otherwise
required to be delivered to such Person under any provision of this Agreement.
(f) Notwithstanding any provision of this Agreement to the contrary, the
Master Servicer shall not have any obligation (other than to the Special
Servicer) to deliver any statement, notice or report that is then made
available on the Master Servicer's or the Paying Agent's internet website,
provided that it has notified all parties entitled to delivery of such reports,
by electronic mail or other notice provided in this Agreement, to the effect
that such statements, notices or reports shall thereafter be made available on
such website from time to time.
(g) The Master Servicer shall deliver or cause to be delivered to the
Paying Agent the following CMSA Reports with respect to the Mortgage Loans
(and, if applicable, the related REO Properties, and, to the extent received
from the 2001-TOP3 Master Servicer, the Pari Passu Loan) providing the required
information as of the related Determination Date upon the following schedule:
(i) a Comparative Financial Status Report not later than each Report Date,
commencing in January 2002; (ii) an Operating Statement Analysis Report, the
Financial File and an NOI Adjustment Worksheet in accordance with Section 8.14
of this Agreement; (iii) a Servicer Watch List in accordance with and subject
to the terms of Section 8.11(h) on each Report Date, commencing in January
2002; (iv) a Loan Set-Up File (with respect to the initial Distribution Date
only) not later than the Report Date in December 2001; (v) a Loan Periodic
Update File not later than each Report Date commencing in December 2001; (vi) a
Property File not later than each Report Date, commencing in February 2002;
(vii) a Delinquent Loan Status Report on each Report Date, commencing in
January 2002; (viii) an Historical Loan Modification Report not later than each
Report Date, commencing in January 2002, (ix) an Historical Liquidation Report
not later than each Report Date, commencing in January 2002; and (x) an REO
Status Report on each Report Date, commencing in January 2002. The information
that pertains to Specially Serviced Mortgage Loans and REO Properties reflected
in such reports shall be based solely upon the reports delivered by the Special
Servicer to the Master Servicer in writing and on a computer readable medium
reasonably acceptable to the Master Servicer and the Special Servicer on the
Determination Date prior to the related Master Servicer Remittance Date in the
form required under Section 9.32. The Master Servicer's responsibilities under
this Section 8.11(g) with respect to REO Loans and Specially Serviced Mortgage
Loans shall be subject to the satisfaction of the Special Servicer's
obligations under Section 9.32. The reporting obligations of the Master
Servicer in connection with any A/B Mortgage Loan shall be construed to refer
only to such information regarding the A/B Mortgage Loan (and its related
Mortgaged Property) and by reference to the related A Note only, but whenever
the Master Servicer remits funds to the holder of the related B Note, it shall
thereupon deliver to such holder a remittance report identifying the amounts in
such remittance.
(h) For each Distribution Date, the Master Servicer shall deliver to the
Paying Agent (and solely with respect to any A/B Mortgage Loan, the holder of
the related B Note), not later than the related Report Date, a Servicer Watch
List. To the extent the Master Servicer has
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knowledge thereof, the Master Servicer shall list any Mortgage Loan on the
Servicer Watch List as to which any of the following events have occurred
following the Cut-Off Date: (i) Mortgage Loans having a current Debt Service
Coverage Ratio that is 88% or less of the Debt Service Coverage Ratio listed
for such Mortgage Loan on Annex A to the Final Prospectus Supplement or having
a Debt Service Coverage Ratio that is less than 1.10x, (ii) Mortgage Loans as
to which any required inspection of the related Mortgaged Property conducted by
the Master Servicer indicates a problem that the Master Servicer determines can
reasonably be expected to materially adversely affect the cash flow generated
by such Mortgaged Property, (iii) Mortgage Loans which have come to the Master
Servicer's attention in the performance of its duties under this Agreement, in
respect of which (A) the occupancy of the related Mortgaged Property is under
80%, (B) any tenant occupying 25% or more of the space in the related Mortgaged
Property vacates the Mortgaged Property (without being replaced by one or more
comparable tenants and leases) or is the subject of bankruptcy or similar
proceedings if the Master Servicer has received written notice of such
proceedings or such proceedings have become general public knowledge, (C) with
respect to Mortgaged Properties operated as a hotel, the occupancy thereof is
more than 10% less than the occupancy as of the Cut-Off Date as set forth in
Appendix I to the Prospectus Supplement or (D) any Mortgagor or an affiliate
thereof has been the subject of bankruptcy or similar proceedings if the Master
Servicer has received written notice of such proceedings or such proceedings
have become general public knowledge, (iv) Mortgage Loans that are at least 30
days delinquent in payment, (v) Mortgage Loans that are within 90 days of
maturity, (vi) Mortgage Loans that are delinquent in respect of real estate
taxes, (vii) Mortgage Loans for which any outstanding advances exist, (viii)
Mortgage Loans that are late after the expiration of any grace period in making
monthly payments three or more times in the preceding 12 months (commencing
with the first anniversary of the Closing Date) and (ix) any Rehabilitated
Mortgage Loan until the Mortgagor has made three (3) consecutive payments.
(i) If the Master Servicer delivers a notice of drawing to effect a
drawing on any letter of credit or debt service reserve account under which the
Trust has rights as the holder of any Mortgage Loan for purposes other than
payment or reimbursement of amounts contemplated in and by a reserve or escrow
agreement (other than after a default under an applicable Mortgage Loan), the
Master Servicer shall, within five (5) Business Days following its receipt of
the proceeds of such drawing, deliver notice thereof to the Special Servicer,
the Operating Adviser and the Paying Agent, which notice shall set forth (i)
the unpaid Principal Balance of such Mortgage Loan immediately before and
immediately after the drawing, and (ii) a brief description of the
circumstances that in the Master Servicer's good faith and reasonable judgment
entitled the Master Servicer to make such drawing.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master Servicer shall
deliver to the Depositor, the Paying Agent, the Swap Counterparty and the
Trustee on or before the Report Date in March of each year, commencing in March
2002, an Officer's Certificate stating, as to the signer thereof, that (A) a
review of the activities of the Master Servicer during the preceding calendar
year or portion thereof and of the performance of the Master Servicer under
this Agreement has been made under such officer's supervision and (B) to the
best of such officer's knowledge, based on such review, the Master Servicer has
fulfilled all its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and
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the nature and status thereof. The Master Servicer shall forward a copy of each
such statement to the Rating Agencies and the Operating Adviser.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING REPORT. On
or before noon (Eastern Time) on March 31 of each year (or March 30 if a leap
year), commencing in March 2002, the Master Servicer at its expense shall cause
a firm of nationally recognized independent public accountants (which may also
render other services to the Master Servicer) and that is a member of the
American Institute of Certified Public Accountants to furnish a statement to
the Trustee, the Paying Agent, the Swap Counterparty and the Depositor, with a
copy to the Rating Agencies, to the effect that (i) it has obtained a letter of
representation regarding certain matters from the management of the Master
Servicer, which includes an assertion that the Master Servicer has complied
with certain minimum mortgage loan servicing standards (to the extent
applicable to commercial and multifamily mortgage loans), identified in the
Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by Primary
Servicers or Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered within one year of such report)
with respect to those Primary Servicers or Sub-Servicers.
SECTION 8.14 OPERATING STATEMENT ANALYSIS REPORTS REGARDING THE MORTGAGED
PROPERTIES. Within 105 calendar days after the end of each of the first three
calendar quarters (in each year) for the trailing or quarterly information
received, commencing in the quarter ending on March 31, 2002, the Master
Servicer (in the case of Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent an Operating Statement
Analysis Report and a CMSA Financial File for each Mortgaged Property (in
electronic format), prepared using the non-normalized quarterly operating
statements and rent rolls received from the related Mortgagor. Not later than
the Report Date occurring in July of each year, beginning in 2002, the Master
Servicer (in the case of Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent an Operating Statement
Analysis Report, a CMSA Financial File and an NOI Adjustment Worksheet for each
Mortgage Loan (in electronic format), based on the most recently available
year-end financial statements and most recently available rent rolls of each
applicable Mortgagor (to the extent provided to the Master Servicer by or on
behalf of each Mortgagor, or, in the case of Specially Serviced Mortgaged
Loans, as provided to the Special Servicer, which Special Servicer shall
forward such information to the Master Servicer on or before May 31 of each
such year), containing such information and analyses for each Mortgage Loan
provided for in the respective forms of Operating Statement Analysis Report,
CMSA Financial File and an NOI Adjustment Worksheet as would customarily be
included in accordance with the Servicing Standard including, without
limitation, Debt Service Coverage
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Ratios and income, subject, in the case of the Pari Passu Loan, to the receipt
of such report from the 2001-TOP3 Master Servicer or the 2001-TOP3 Special
Servicer. The Master Servicer shall make reasonable efforts, consistent with
the Servicing Standard, to obtain such reports from the 2001-TOP3 Master
Servicer or 2001-TOP3 Special Servicer. In addition, the Master Servicer shall
deliver to the Operating Adviser, and upon request the Master Servicer shall
make available to the Rating Agencies, the Special Servicer, the Paying Agent
and the Trustee, within 30 days following receipt thereof by the Master
Servicer, copies of any annual, monthly or quarterly financial statements and
rent rolls collected with respect to the Mortgaged Properties. As and to the
extent reasonably requested by the Special Servicer, the Master Servicer shall
make inquiry of any Mortgagor with respect to such information or as regards
the performance of the related Mortgaged Property in general. The Paying Agent
shall provide or make available electronically at no cost to the
Certificateholders or Certificate Owners, the Rating Agencies, the Operating
Adviser, the Depositor, the Placement Agents, the Underwriters, and solely as
it relates to any A/B Mortgage Loan, to the holder of the related B Note, the
Operating Statement Analysis Reports, CMSA Financial Files and NOI Adjustment
Worksheets described above pursuant to Section 5.4(a).
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS OF THE MASTER
SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the Paying Agent shall
make available at its Corporate Trust Office, during normal business hours,
upon reasonable advance written notice for review by any Certificateholder, any
Certificate Owner, any Seller, any Primary Servicer, any Placement Agent, any
Underwriter, each Rating Agency, the Paying Agent or the Depositor (and the
holder of a B Note, if it relates to a B Note), originals or copies of, among
other things, the following items: (i) this Agreement and any amendments
thereto, (ii) all final and released Operating Statement Analysis Reports and
the Master Servicer Remittance Reports, (iii) all Officer's Certificates
(including Officer's Certificates evidencing any determination of
Nonrecoverable Advances) delivered to the Trustee and the Paying Agent since
the Closing Date, (iv) all accountants' reports delivered to the Trustee and
the Paying Agent since the Closing Date, (v) the most recent property
Inspection Reports in the possession of the Paying Agent in respect of each
Mortgaged Property, (vi) the most recent Mortgaged Property annual operating
statement and rent roll, if any, collected by or on behalf of the Master
Servicer or the Special Servicer, (vii) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
and/or the Special Servicer, and (viii) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support
the Master Servicer's determination that any Advance was not or, if made, would
not be, recoverable. The Trustee will be permitted to require payment of a sum
to be paid by the requesting party (other than the Rating Agencies, the
Trustee, the Paying Agent, any Placement Agent or any Underwriter) sufficient
to cover the reasonable costs and expenses of making such information
available.
(b) Subject to the restrictions described below, the Master Servicer shall
afford the Rating Agencies, the Depositor, the Trustee, the Paying Agent, the
Special Servicer, the Primary Servicers, the Sellers, the Placement Agents, the
Underwriters, the Operating Adviser, any Certificateholder, any holder of a B
Note or Certificate Owner, upon reasonable
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notice and during normal business hours, reasonable access to all information
referred to in Section 8.15(a) and any additional relevant,
non-attorney-client-privileged records and documentation regarding the
applicable Mortgage Loans, REO Property and all accounts, insurance policies
and other relevant matters relating to this Agreement (which access may occur
by means of the availability of information on the Master Servicer's or the
Paying Agent's internet website), and access to Servicing Officers of the
Master Servicer responsible for its obligations hereunder. Copies of
information or access will be provided to Certificateholders and each
Certificate Owner providing satisfactory evidence of ownership of Certificates
or beneficial ownership of a Certificate, as the case may be, which may include
a certification. Copies (or computer diskettes or other digital or electronic
copies of such information if reasonably available in lieu of paper copies) of
any and all of the foregoing items shall be made available by the Master
Servicer upon request; provided, however, that the Master Servicer shall be
permitted to require payment by the requesting party (other than the Depositor,
the Trustee, the Paying Agent, the Special Servicer, any Placement Agent, any
Underwriter, or any Rating Agency) of a sum sufficient to cover the reasonable
expenses actually incurred by the Master Servicer of providing access or copies
(including electronic or digital copies) of any such information requested in
accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master Servicer to
confirm, represent or warrant the accuracy of (or to be liable or responsible
for) any other Person's information or report. Notwithstanding the above, the
Master Servicer shall not have any liability to the Depositor, the Trustee, the
Fiscal Agent, the Paying Agent, the Special Servicer, the 2001-TOP3 Master
Servicer, 2001-TOP3 Special Servicer, any Certificateholder, any Certificate
Owner, any holder of a B Note, any Placement Agent, any Underwriter, any Rating
Agency or any other Person to whom it delivers information pursuant to this
Section 8.15 or any other provision of this Agreement for federal, state or
other applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any
account or otherwise) shall hold harmless and indemnify the Master Servicer
from any loss or expense (including attorney fees) relating to or arising from
such claims.
(d) The Master Servicer shall produce the reports required of it under
this Agreement; provided, however, that the Master Servicer shall not be
required to produce any ad hoc non-standard written reports with respect to
such Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available
upon request to any Person other than the parties hereto, the Master Servicer
may require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the Primary
Servicers, the Sellers, any Placement Agent, any Underwriter, any Rating Agency
and/or the Certificateholders, the holder of a B Note or Certificate Owners.
Any transmittal of information by the Master Servicer to any Person other than
the Trustee, the Paying Agent, the Master Servicer, the Special Servicer, the
Rating Agencies, the Operating Adviser or the Depositor may be accompanied by a
letter from the Master Servicer containing the following provision:
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"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict any
person who possesses material, non-public information regarding the Trust
which issued Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4 from purchasing or
selling such Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You also
acknowledge and agree that such information is being provided to you for
the purpose of, and such information may be used only in connection with,
evaluation by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein."
(e) The Master Servicer may, at its discretion, make available by
electronic media and bulletin board service certain information and may make
available by electronic media or bulletin board service (in addition to making
such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the Rating Agencies
with such other pertinent information relating to the Mortgage Loans as is or
should be in their respective possession as the Rating Agencies may reasonably
request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the Certificates
are "restricted securities" within the meaning of Rule 144A under the
Securities Act, the Master Servicer agrees to provide to the Paying Agent for
delivery to any Holder thereof, any Certificate Owner therein and to any
prospective purchaser of the Certificates or beneficial interest therein
reasonably designated by the Paying Agent upon the request of such
Certificateholder, such Certificate Owner or the Paying Agent, subject to this
Section 8.16 and the provisions of Section 8.15, any information prepared by
the Master Servicer that is required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act, including, without limitation, copies of the reports
and information described in Sections 8.15(a) and (b).
Any recipient of information provided pursuant to this Section 8.16 shall
agree that such information shall not be disclosed or used for any purpose
other than the evaluation of the Certificates by such Person and the Master
Servicer shall be permitted to use the letter referred to in Section 8.15(d).
Unless the Master Servicer chooses to deliver the information directly, the
Depositor, the Placement Agents, the Underwriters or the Paying Agent shall be
responsible for the physical delivery of the information requested pursuant to
this Section 8.16. As a condition to the Master Servicer making any report or
information available upon request to any Person other than the parties hereto,
the Master Servicer may require that the recipient of such information
acknowledge that the Master Servicer may contemporaneously provide such
information to the Depositor, the Trustee, the Paying Agent, the Placement
Agents, the Underwriters, any Rating Agency and/or the Certificateholders and
Certificate Owners. The Master Servicer will be permitted to require payment of
a sum to be paid by the requesting party (other than the Rating Agencies, the
Trustee, the Paying Agent, the Placement Agents or the
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Underwriters) sufficient to cover the reasonable costs and expenses of making
such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its own expense,
inspect or cause to be inspected each Mortgaged Property other than Mortgaged
Properties related to Specially Serviced Mortgage Loans and the Pari Passu
Loan, every calendar year beginning in 2002, or every second calendar year
beginning in 2002 if the Principal Balance of the related Mortgage Loan is
under $2 million; provided that the Master Servicer shall, at the expense of
the Trust, inspect or cause to be inspected each Mortgaged Property related to
a Mortgage Loan that has a Debt Service Coverage Ratio that falls below 1.0x.
The Master Servicer shall prepare an Inspection Report relating to each
inspection. The Master Servicer shall promptly forward the applicable
Inspection Report to the Rating Agencies, the Placement Agents, the
Underwriters, the Depositor, the Trustee, the Paying Agent, the Operating
Adviser, the Special Servicer and solely as it relates to any A/B Mortgage
Loan, to the holder of the related B Note. The Special Servicer shall have the
right to inspect or cause to be inspected (at its own expense) every calendar
year any Mortgaged Property related to a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, provided that the Special Servicer notifies the Master
Servicer prior to such inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS AND CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master Servicer
shall have the following powers:
(a) (i) The Master Servicer in accordance with the Servicing Standard may
agree to any modification, waiver, amendment or consent of or relating to any
term other than a Money Term of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, provided that such amendment would not result in an
Adverse REMIC Event; and provided, further that if any consent relates to a
release of a letter of credit relating to any Mortgage Loan (other than letters
of credit or portions thereof released upon satisfaction of conditions
specified in the related agreements), then (i) the Master Servicer shall notify
the Special Servicer of any Mortgagor's request to release such letter of
credit which the Master Servicer recommends to release, and (ii) if the terms
of the related Mortgage Loan do not require the Master Servicer to approve such
release, then the Special Servicer shall within five Business Days provide
notice to the Master Servicer on whether the Master Servicer should approve the
release (and the failure of the Special Servicer to give the Master Servicer
such notice shall automatically be deemed to be an approval by the Special
Servicer that the Master Servicer should grant such release). Notwithstanding
the preceding sentence, if the Master Servicer recommends to approve such
modification, waiver, amendment or consent (including, without limitation, any
waiver of any requirement that the Mortgagor post additional reserves or a
letter of credit upon the failure of the Mortgagor to satisfy conditions
specified in the Mortgage Loan documents), the Master Servicer shall provide to
the Special Servicer a copy of the Master Servicer's recommendation and the
relevant information obtained or prepared by the Master Servicer in connection
therewith (A) the Special Servicer shall have the right hereunder to grant or
withhold consent to any such proposed modification, waiver, amendment or
consent, and such consent of the Special Servicer shall not be unreasonably
withheld, consistent with the Servicing Standard, (B) failure of the
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Special Servicer to notify the Master Servicer, within five Business Days
following the Master Servicer's delivery of the recommendation described above,
of its determination to grant or withhold such consent shall be deemed to
constitute a grant of such consent and (C) the Master Servicer shall not enter
into any such proposed modification, waiver, amendment or consent unless it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described above. Notwithstanding the foregoing,
if a Mortgagor makes a request under the Mortgage Loan documents which is not a
request for a modification, waiver or amendment but requires the satisfaction
of a condition, term or provision of such documents and which requires, or
specifies a standard of, consent or approval of the applicable holder of the
Mortgage, then the Master Servicer, exercising good faith using the Servicing
Standard, shall determine if such condition, term or provision is material to
the request, and if so, shall refer it to the Special Servicer as provided in
clauses(A) - (C) above and if not, may thereafter handle such consent as
otherwise provided and permitted in this Agreement. In any event, the Master
Servicer shall promptly notify the Special Servicer of any material
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof. Notwithstanding the foregoing provisions of this Section 8.18, if the
Mortgage Loan documents require a Mortgagor to pay a fee for an assumption,
modification, waiver, amendment or consent that would be due or partially due
to the Special Servicer, then the Master Servicer shall not waive such fee
without the Special Servicer's approval.
Notwithstanding the foregoing, the Special Servicer acknowledges that the
Master Servicer has delegated certain tasks, rights and obligations to Primary
Servicers with respects to Post Closing Requests (as defined in the Primary
Servicing Agreements) pursuant to Section 8.4 of this Agreement. The Primary
Servicing Agreements classify certain Post Closing Requests as Category 1
Requests (as defined in the Primary Servicing Agreements), in which Primary
Servicer has certain authority to evaluate and process such requests in
accordance with this Agreement, the applicable Primary Servicing Agreement and
applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a condition, term or
provision that requires, or specifies a standard of, consent or approval of the
applicable Mortgagee under the Mortgage Loan documents, the Primary Servicing
Agreements provide for Master Servicer's determination of materiality of such
condition, term or provision requiring approval or consent and the referral of
such condition, term or provision to a Special Servicer for consent in
accordance with the terms of the Primary Servicing Agreements upon a
determination of materiality. Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicers greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the Special
Servicer, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60
days following the original Maturity Date, if in the Master Servicer's
sole judgment exercised in good faith (and evidenced by an Officer's
Certificate), a default in the payment of the Balloon Payment is
reasonably foreseeable and such extension is reasonably likely to produce
a greater recovery to the Holders on a net present value basis than
liquidation of such Mortgage Loan and the Mortgagor has obtained an
executed
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written commitment (subject only to satisfaction of conditions set forth
therein) for refinancing of the Mortgage Loan or purchase of the related
Mortgaged Property. The Master Servicer shall process all such extensions
and shall be entitled to (as additional servicing compensation) 100% of
any extension fees collected from a Mortgagor with respect to any such
extension.
(b) The Master Servicer may require, in its discretion (unless prohibited
or otherwise provided in the Mortgage Loan documents), as a condition to
granting any request by a Mortgagor for any consent, modification, waiver or
amendment, that such Mortgagor pay to the Master Servicer a reasonable and
customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulation
Section 1.860G-2(b) of the Mortgage Loan). The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees and rating
agency fees) incurred by the Master Servicer or the Special Servicer (which
amounts shall be reimbursed to the Special Servicer) in connection with any
request for a modification, waiver or amendment. The Master Servicer agrees to
use its best reasonable efforts in accordance with the Servicing Standard to
collect such costs, expenses and fees from the Mortgagor, provided that the
failure or inability of the Mortgagor to pay any such costs and expenses shall
not impair the right of the Master Servicer to cause such costs and expenses
(but not including any modification fee), and interest thereon at the Advance
Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the
extent not paid by the Mortgagor). If the Master Servicer believes that the
costs and expenses (including attorneys' fees) to be incurred by the Master
Servicer in connection with any request for a modification, waiver or amendment
will result in a payment or reimbursement by the Trust, then the Master
Servicer shall notify the Special Servicer.
The parties hereto acknowledge that (a) if the payments described in
paragraph 42 of Exhibit 2 to Mortgage Loan Purchase Agreement IV regarding the
obligation of a related Mortgagor to pay the reasonable costs and expenses
associated with any substitution of the related Mortgaged Property are
insufficient to reimburse the Trust or (b) if the Trust incurs any Additional
Trust Expense associated solely with the substitution of the Mortgaged Property
that is not required to be paid by the related Mortgagor pursuant to the
related Mortgage Loan documents (and such Additional Trust Expense is not paid
by the Mortgagor), including, but not limited to, rating agency fees or
opinions of counsel, then in either case the sole obligation of the Seller
under Mortgage Loan Purchase Agreement IV shall be to pay an amount equal to
such insufficiency or expense to the extent the related Mortgagor is not
required to pay them. Promptly upon receipt of notice of such insufficiency or
unpaid expense, the Master Servicer shall request the related Seller to make
such payment by deposit to the Certificate Account.
(c) The Master Servicer shall notify the Trustee, the Paying Agent and the
Special Servicer of any modification, waiver or amendment of any term of any
Mortgage Loan permitted by it under this Section and the date thereof, and
shall deliver to the Trustee for deposit in the related Mortgage File, an
original counterpart of the agreement relating to such modification, waiver or
amendment, promptly following the execution thereof except to the extent such
documents have been submitted to the applicable recording office, in which
event the Master Servicer shall promptly deliver copies of such documents to
the Trustee. The Master Servicer shall not agree to any modification, waiver,
or amendment of any Money Term of a Mortgage Loan or any term of a Specially
Serviced Mortgage Loan. Any modification of the
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monthly payments of an A/B Mortgage Loan shall be allocated in accordance with
the related Intercreditor Agreement.
(d) If the Mortgage Loan documents relating to a Mortgage Loan provide for
certain conditions to be satisfied prior to the Master Servicer releasing
additional collateral for the Mortgage Loan (e.g., the release, reduction or
termination of reserves or letters of credit or the establishment of reserves),
then the Master Servicer shall be permitted to waive any such condition without
obtaining the consent of the Special Servicer, provided that (1) the aggregate
amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $75,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement.
(e) Neither the Master Servicer nor any Primary Servicer will be required
to obtain a Rating Agency Confirmation in connection with this Agreement unless
the terms of this Agreement specifically requires the Master Servicer to do so,
and if so required by the terms of this Agreement, the Master Servicer and any
Primary Servicer shall not be permitted to waive (i) the Rating Agency
Confirmation requirement or (ii) the obligation of a Mortgagor to pay all or
any portion of any fee payable in connection with obtaining the Rating Agency
Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the Special
Servicer, the Rating Agencies, the Paying Agent, the Trustee and solely as it
relates to any A/B Mortgage Loan, to the holder of the related B Note, within
two Business Days after becoming aware of a Servicing Transfer Event with
respect to a Mortgage Loan, which notice shall identify the related Mortgage
Loan and set forth in reasonable detail the nature and relevant facts of such
Servicing Transfer Event and whether such Mortgage Loan is covered by an
Environmental Insurance Policy (and for purposes of stating whether such
Mortgage Loan is covered by an Environmental Insurance Policy the Master
Servicer may rely on Schedule X attached hereto) and, except for the Rating
Agencies, the Paying Agent and the Trustee, shall be accompanied by a copy of
the Servicer Mortgage File. The Special Servicer shall not be liable for its
failure to deliver the notice set forth in Section 9.36(a) if such failure is
caused by its failure to receive the written notice set forth above.
(b) Prior to the transfer of the servicing of any Specially Serviced
Mortgage Loan to the Special Servicer, the Master Servicer shall notify the
related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master Servicer to the
extent they relate to Specially Serviced Mortgage Loans shall be based on
information supplied to the Master Servicer in writing by the Special Servicer
as provided hereby. The Master Servicer shall have no duty to investigate or
confirm the accuracy of any information provided to it by the
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Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
(d) On or prior to each Distribution Date, the Master Servicer shall
provide to the Special Servicer, in order for the Special Servicer to comply
with its obligations under this Agreement, such information (and in the form
and medium) as the Special Servicer may reasonably request in writing from time
to time, provided that (i) the Master Servicer shall not be required to produce
any ad hoc reports or incur any unusual expense or effort in connection
therewith and (ii) if the Master Servicer elects to provide such ad hoc
reports, it may require the Special Servicer to pay a reasonable fee to cover
the costs of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE MASTER
SERVICER.
(a) The Master Servicer hereby represents and warrants to and covenants
with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly existing and in
good standing as a national banking association under the laws of the
United States, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the
extent necessary to perform its obligations under this Agreement, except
where the failure to so qualify or comply would not adversely affect the
Master Servicer's ability to perform its obligations hereunder in
accordance with the terms of this Agreement;
(ii) the Master Servicer has the full power and authority to execute,
deliver, perform, and to enter into and consummate all transactions and
obligations contemplated by this Agreement. The Master Servicer has duly
and validly authorized the execution, delivery and performance of this
Agreement and this Agreement has been duly executed and delivered by the
Master Servicer; and this Agreement, assuming the due authorization,
execution and delivery thereof by the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent and the Special Servicer, evidences the valid and
binding obligation of the Master Servicer enforceable against the Master
Servicer in accordance with its terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, receivership and other similar laws affecting creditors'
rights generally as from time to time in effect, and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of this Agreement, the consummation
of the transactions contemplated hereby, and the fulfillment of or
compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or
(2) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which it is a party or by which it may be bound, or any law,
governmental rule, regulation, or judgment, decree or order applicable to
it of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely affects
its ability to perform its obligations under this Agreement;
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(iv) no litigation is pending or, to the Master Servicer's knowledge,
threatened, against it, that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability to
service the Mortgage Loans or to perform any of its other obligations
hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained the
same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it
of its obligations hereunder; and
(vi) the performance of the services by the Master Servicer
contemplated by this Agreement are in the ordinary course of business of
the Master Servicer and the Master Servicer possesses all licenses,
permits and other authorizations necessary to perform its duties
hereunder.
(b) It is understood that the representations and warranties set forth in
this Section 8.20 shall survive the execution and delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising out of the
breach of any representations and warranties made in this Section shall accrue
upon the giving of written notice to the Master Servicer by any of the Trustee
or the Master Servicer. The Master Servicer shall give prompt notice to the
Trustee, the Depositor, the Primary Servicers and the Special Servicer of the
occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect.
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which the Master
Servicer may be merged or consolidated, or any Person resulting from any
merger, conversion, other change in form or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation. If the conditions to the provisions in
the foregoing sentence are not met, the Trustee may terminate the Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof, the Master
Servicer shall not resign from the obligations and duties hereby imposed on it
unless it determines that the Master Servicer's duties hereunder are no longer
permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall
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be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until a successor servicer
designated by the Trustee, with the consent of the Depositor and the Paying
Agent, shall have assumed the Master Servicer's responsibilities and
obligations under this Agreement and Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Master
Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and duties imposed
on it, upon 30 days notice to the Trustee and the Paying Agent, provided that
(i) a successor servicer (w) is available, (x) has assets of at least
$15,000,000, (y) is willing to assume the obligations, responsibilities, and
covenants to be performed hereunder by the Master Servicer on substantially the
same terms and conditions, and for not more than equivalent compensation to
that herein provided and (z) assumes all obligations under the Primary
Servicing Agreements; (ii) the Master Servicer bears all costs associated with
its resignation and the transfer of servicing; and (iii) Rating Agency
Confirmation is obtained with respect to such servicing transfer, as evidenced
by a letter delivered to the Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER SERVICER. The
Master Servicer shall have the right without the prior written consent of the
Trustee to (A) delegate or subcontract with or authorize or appoint anyone, or
delegate certain duties to other professionals such as attorneys and
appraisers, as an agent of the Master Servicer (as provided in Section 8.4) to
perform and carry out any duties, covenants or obligations to be performed and
carried out by the Master Servicer hereunder or (B) assign and delegate all of
its duties hereunder; provided, however, that with respect to clause (B), (i)
the Master Servicer gives the Depositor, the Special Servicer, the Primary
Servicers and the Trustee notice of such assignment and delegation; (ii) such
purchaser or transferee accepting such assignment and delegation executes and
delivers to the Depositor and the Trustee an agreement accepting such
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer,
with like effect as if originally named as a party to this Agreement and the
Primary Servicing Agreements; (iii) the purchaser or transferee has assets in
excess of $15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (v) the Depositor consents to such assignment
and delegation, such consent not be unreasonably withheld. In the case of any
such assignment and delegation in accordance with the requirements of subclause
(B) of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
the Primary Servicers and Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS.
(a) Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
holders of the Certificates, the Depositor, the Trustee, the Fiscal Agent, the
Paying Agent, the Placement Agents, the Underwriters, the holder of any B Note
or the Special Servicer for any action taken or for refraining from the taking
of any action in good faith, or using reasonable business judgment,
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consistent with the Servicing Standard; provided that this provision shall not
protect the Master Servicer or any such person against any breach of a
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties under the Agreement or by reason of negligent
disregard of obligations and duties hereunder. The Master Servicer and any
director, officer, employee or agent of the Master Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted
by any Person (including, without limitation, the Special Servicer) respecting
any matters arising hereunder. The Master Servicer shall not be under any
obligation to appear in, prosecute or defend any legal action which is not
incidental to its duties to service the Mortgage Loans in accordance with this
Agreement; provided that the Master Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable
in order to protect the interests of the Certificateholders and the Trustee in
the Mortgage Loans, or the interests of the holder of any B Note (subject to
the Special Servicer's servicing of Specially Serviced Mortgage Loans as
contemplated herein), or shall undertake any such action if instructed to do so
by the Trustee. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the Master Servicer shall be
entitled to be reimbursed therefor as Servicing Advances as provided by Section
5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no liability with respect
to, and shall be entitled to conclusively rely on as to the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Master Servicer and conforming to the requirements of
this Agreement. Subject to the Servicing Standard, the Master Servicer shall
have the right to rely on information provided to it by the Special Servicer
and Mortgagors, and will have no duty to investigate or verify the accuracy
thereof. Neither the Master Servicer, nor any director, officer, employee,
agent or Affiliate, shall be personally liable for any error of judgment made
in good faith by any officer, unless it shall be proved that the Master
Servicer or such officer was negligent in ascertaining the pertinent facts.
Neither the Master Servicer nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any liabilities,
costs, charges, fees or other expenses which relate to or arise from any breach
of any representation, warranty or covenant made by the Depositor, the Special
Servicer, the Paying Agent, Trustee or the Fiscal Agent in this Agreement. The
Trust shall indemnify and hold harmless the Master Servicer from any and all
claims, liabilities, costs, charges, fees or other expenses which relate to or
arise from any such breach of representation, warranty or covenant to the
extent the Master Servicer is unable to recover such amounts from the Person in
breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be protected in acting or
refraining from acting upon, any resolution, officer's certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, financial statement,
agreement, appraisal, bond or other document (in electronic or paper
format)
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reasonably believed or in good faith believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel, and any written
advice or Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(iii) the Master Servicer shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement; and
(iv) the Master Servicer, in preparing any reports hereunder, may
rely, and shall be protected in acting or refraining from acting upon any
information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed by
it to be genuine and provided by any Mortgagor or manager of a Mortgaged
Property.
(e) The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trustee, the Fiscal Agent, the
Paying Agent and the Special Servicer, as the case may be, and held harmless
against any loss, liability or expense including reasonable attorneys' fees
incurred in connection with any legal action relating to the Trustee's, Fiscal
Agent's, the Paying Agent's or the Special Servicer's, as the case may be,
respective willful misfeasance, bad faith or negligence in the performance of
its respective duties hereunder or by reason of negligent disregard of its
respective duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder. The Master
Servicer shall immediately notify the Trustee, the Paying Agent and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer to indemnification hereunder,
whereupon the Trustee, the Paying Agent, or the Special Servicer, in each case,
to the extent the claim is related to its respective willful misfeasance, bad
faith or negligence, may assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee, the Paying Agent
and the Special Servicer shall not affect any rights that the Master Servicer
may have to indemnification under this Agreement or otherwise, unless the
Trustee's, the Paying Agent's or the Special Servicer's defense of such claim
is materially prejudiced thereby. Such indemnity shall survive the termination
of this Agreement or the resignation or removal of the Master Servicer
hereunder. Any payment hereunder made by the Trustee, the Paying Agent, the
Fiscal Agent or the Special Servicer pursuant to this paragraph to the Master
Servicer shall be paid from the Trustee's, the Paying Agent's, Fiscal Agent's
or Special Servicer's own funds, without reimbursement from the Trust therefor
except to the extent achieved through subrogation as provided in this
Agreement. Any expenses incurred or indemnification payments made by the
Trustee, the Paying Agent, the Fiscal Agent or the Special Servicer shall be
reimbursed by the party so paid, if a court of competent jurisdiction makes a
final judgment that the conduct of the
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Trustee, the Paying Agent, the Fiscal Agent or the Special Servicer, as the
case may be was not culpable or found to not have acted with willful
misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee or agent of
the Master Servicer shall be indemnified by the Trust and held harmless against
any and all claims, losses, penalties, fines, forfeitures, legal fees and
related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to this Agreement, any
Mortgage Loans, any REO Property or the Certificates or any exercise of any
right under this Agreement reasonably requiring the use of counsel or the
incurring of expenses other than any loss, liability or expense incurred by
reason of the Master Servicer's willful misfeasance, bad faith or negligence in
the performance of duties hereunder. The Master Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Master
Servicer) and out of the Trust pay all expenses in connection therewith,
including counsel fees, and out of the Trust promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. The indemnification provided herein shall survive the
termination of this Agreement. The Trustee, the Paying Agent or the Master
Servicer shall promptly make from the Certificate Account any payments
certified by the Master Servicer to the Trustee and the Paying Agent as
required to be made to the Master Servicer pursuant to this Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee, the Fiscal Agent,
the Special Servicer, the Trust, the Depositor, the Paying Agent, and any
director, officer, employee, agent or Controlling Person thereof, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent and the Trust may sustain arising from or as a
result of the willful misfeasance, bad faith or negligence in the performance
of any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder (including
a breach of such obligations a substantial motive of which is to obtain an
economic advantage from being released from such obligations), and if in any
such situation the Master Servicer is replaced, the parties hereto agree that
the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at
least equal the incremental costs, if any, of retaining a successor servicer.
The Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the
Depositor, as applicable, shall immediately notify the Master Servicer if a
claim is made by any Person with respect to this Agreement or the Mortgage
Loans entitling the Trustee, the Fiscal Agent, the Depositor, the Special
Servicer, the Paying Agent or the Trust to indemnification under this Section
8.25(b), whereupon the Master Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent,
the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Master Servicer
shall not affect any rights the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement or otherwise, unless the Master Servicer's
defense of such claim is materially prejudiced thereby. The indemnification
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provided herein shall survive the termination of this Agreement and the
resignation or termination of the Master Servicer, the Fiscal Agent, the Special
Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by the Master Servicer shall be reimbursed by the
party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of the Master Servicer was not culpable
or that the Master Servicer did not act with willful misfeasance, bad faith or
negligence.
(c) Each Primary Servicer and any director, officer, employee or agent
thereof shall be indemnified by the Trust and held harmless against any and
all claims, losses, penalties, fines, forfeitures, legal fees and related
costs, judgments and any other costs, liabilities, fees and expenses incurred
in connection with any legal action relating to this Agreement, its related
Primary Servicing Agreement (but only if, and to the extent that, the Master
Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the Mortgage Loan), any Mortgage
Loans, any REO Property or the Certificates or any exercise of any right under
this Agreement or its related Primary Servicing Agreement (limited as set
forth above) reasonably requiring the use of counsel or the incurring of
expenses other than any loss, liability or expense incurred by reason of a
Primary Servicer's willful misfeasance, bad faith or negligence in the
performance of duties thereunder. The applicable Primary Servicer shall assume
the defense of any such claim (with counsel reasonably satisfactory to the
applicable Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly
pay, discharge and satisfy any judgment or decree which may be entered against
it or them in respect of such claim. The indemnification provided herein shall
survive the termination of this Agreement and the Primary Servicing Agreement.
The Trustee, the Paying Agent or the Master Servicer shall promptly make from
the Certificate Account any payments certified by a Primary Servicer to the
Trustee and the Paying Agent as required to be made to such Primary Servicer
pursuant to this Section 8.25.
(d) Each Primary Servicer agrees to indemnify the Trustee, the Fiscal
Agent, the Special Servicer, the Trust, the Depositor, the Paying Agent, and
any director, officer, employee, agent or Controlling Person thereof, and hold
them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent and the Trust may sustain arising
from or as a result of the willful misfeasance, bad faith or negligence in the
performance of any of the applicable Primary Servicer's duties under this
Agreement, its related Primary Servicing Agreement or by reason of negligent
disregard of the applicable Primary Servicer's obligations and duties
thereunder (including a breach of such obligations a substantial motive of
which is to obtain an economic advantage from being released from such
obligations), and if in any such situation the applicable Primary Servicer is
replaced, the parties hereto agree that the amount of such claims, losses,
penalties, fines, legal fees and related costs, judgments, and other costs,
liabilities, fees and expenses shall at least equal the incremental costs, if
any, of retaining a successor primary servicer. The Trustee, the Fiscal Agent,
the Special Servicer, the Paying Agent or the Depositor, as applicable, shall
immediately notify the applicable Primary Servicer if a claim is made by any
Person with respect to this Agreement, the related Primary Servicing Agreement
or the Mortgage Loans entitling the Trustee, the Fiscal Agent, the Depositor,
the Special Servicer, the Paying Agent or the Trust to indemnification under
this Section 8.25(d), whereupon the applicable Primary Servicer shall assume
the defense of any such claim (with counsel reasonably
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satisfactory to the Trustee, the Fiscal Agent, the Special Servicer, the
Paying Agent or the Depositor, as applicable) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the applicable Primary
Servicer shall not affect any rights the Trustee, the Fiscal Agent, the
Special Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the related Primary Servicing Agreement
or otherwise, unless the Primary Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall
survive the termination of this Agreement and the Primary Servicing Agreement
and the resignation or termination of the Master Servicer, the Fiscal Agent,
the Special Servicer, the Paying Agent and the Trustee. Any expenses incurred
or indemnification payments made by a Primary Servicer shall be reimbursed by
the party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance,
bad faith or negligence.
(e) The 2001-TOP3 Master Servicer and any director, officer, employee or
agent of the 2001-TOP3 Master Servicer shall be indemnified by the Trust and
held harmless against the Trust's pro rata share of any and all claims,
losses, penalties, fines, forfeitures, legal fees and related costs, judgments
and any other costs, liabilities, fees and expenses incurred in connection
with any legal action relating to the 2001-TOP3 Pooling and Servicing
Agreement and this Agreement, and relating to the Pari Passu Loan (but
excluding any such losses allocable to the 2001-TOP3 Mortgage Loan),
reasonably requiring the use of counsel or the incurring of expenses other
than any losses incurred by reason of the 2001-TOP3 Master Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties under
the 2001-TOP3 Pooling and Servicing Agreement.
SECTION 8.26 EXCHANGE ACT REPORTING. The Master Servicer, the Special
Servicer, the Paying Agent, the Trustee and the Fiscal Agent shall reasonably
cooperate with the Depositor in connection with the Depositor's satisfying the
reporting requirements in respect of the Trust under the Exchange Act. The
Paying Agent shall prepare, execute and file on behalf of the Depositor with
respect to the Trust any Forms 8-K and 10-K customary for similar securities
as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder; provided that the Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. The Paying Agent shall file each Form 8-K with a copy of the
related Monthly Certificateholders Report attached thereto. Any other
attachments to be filed with any Form 8-K shall be delivered to the Paying
Agent in Xxxxx-compatible form or as otherwise agreed upon by the Paying Agent
and the Depositor, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. Such XXXXX filings
shall be at the expense of the Depositor. The Paying Agent shall continue to
make such filings until such time as the Depositor notifies the Paying Agent
that it has obtained from the Securities and Exchange Commission a no-action
letter or other exemptive relief relating to reducing reporting requirements
in respect of the Trust under the Exchange Act and, in accordance with and to
the extent permitted by applicable law, has filed a Form 15 relating to the
automatic termination of reporting in respect of the Trust under the Exchange
Act. Beginning on or before January 31, 2002, the Depositor shall pay the
Paying Agent before January 31 of each year a fee of $5,000 as compensation
for preparing and filing such reports.
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SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master Servicer shall
act in accordance with this Agreement and the REMIC Provisions and related
provisions of the Code in order to create or maintain the status of the REMICs
created hereby as REMICs under the Code. The Master Servicer shall take no
action or cause any REMIC Pool to take any action that could (i) endanger the
status of any REMIC Pool as a REMIC under the Code or (ii) result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicer shall comply with the provisions of Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and responsibilities of the
Master Servicer created hereby (other than the obligation of the Master
Servicer to make payments to the Paying Agent as set forth in Section 8.29 and
the obligations of the Master Servicer to the Trustee, the Paying Agent,
Fiscal Agent, the Special Servicer and the Trust) shall terminate (i) on the
date which is the later of (A) the final payment or other liquidation of the
last Mortgage Loan remaining outstanding (and final distribution to the
Certificateholders) or (B) the disposition of all REO Property (and final
distribution to the Certificateholders), (ii) if an Event of Default described
in clauses 8.28(b)(iii), (iv) or (x) has occurred, 60 days following the date
on which the Trustee or Depositor gives written notice to the Master Servicer
that the Master Servicer is terminated or (iii) if an Event of Default
described in clauses 8.28(b)(i), (ii), (v), (vii), (viii) or (ix) has
occurred, immediately upon the date on which the Trustee or the Depositor
gives written notice to the Master Servicer that the Master Servicer is
terminated. After any Event of Default, the Trustee (i) may elect to terminate
the Master Servicer by providing such notice, and (ii) shall provide such
notice if holders of Certificates representing more than 25% of the Aggregate
Certificate Balance of all Certificates so direct the Trustee.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to remit to the
Paying Agent or otherwise make any payment required to be remitted by the Master
Servicer under the terms of this Agreement, including any required Advances;
or
(ii) any failure by the Master Servicer to make a required
deposit to the Certificate Account which continues unremedied for one Business
Day following the date on which such deposit was first required to be made; or
(iii) any failure on the part of the Master Servicer duly
to observe or perform in any material respect any other of the duties,
covenants or agreements on the part of the Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee;
provided, however, that if the Master Servicer certifies to the Trustee and
the Depositor that the Master Servicer is in good faith attempting to remedy
such failure, such cure period will be extended to the extent
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necessary to permit the Master Servicer to cure such failure; provided, further
that such cure period may not exceed 90 days; or
(iv) any breach of the representations and warranties contained
in Section 8.20 hereof that materially and adversely affects the interest of
any holder of any Class of Certificates and that continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring the
same to be remedied, shall have been given to the Master Servicer by the
Depositor or the Trustee, provided, however, that if the Master Servicer
certifies to the Trustee and the Depositor that the Master Servicer is in good
faith attempting to remedy such breach, such cure period will be extended to the
extent necessary to permit the Master Servicer to cure such breach; provided,
further that such cure period may not exceed 90 days; or
(v) the Master Servicer is removed from S&P's approved
master servicer list and the ratings then assigned by S&P to any Classes of
certificates are downgraded, qualified or withdrawn (including, without
limitation, being placed on "negative credit watch") in connection with such
removal; or
(vi) RESERVED; or
(vii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(viii) the Master Servicer shall consent to the appointment of
a conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(ix) the Master Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance of the
foregoing; or
(x) the Master Servicer receives actual knowledge that Xxxxx'x
has (i) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of Certificates, or (ii) placed one or more Classes of
Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn by
Xxxxx'x within 60 days of the date that the Master Servicer obtained such
actual knowledge) and, in the case of either of clauses (i) or (ii), citing
servicing concerns with the Master Servicer as the sole or material factor in
such rating action.
(b) Notwithstanding the foregoing, if the Event of Default of
the Master Servicer occurs solely by reason of the occurrence of a "Primary
Servicing Default" (as
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hereinafter defined), other than by reason of the Master Servicer's failure to
cause the cure of such event, and the Trustee (or the Trustee at the direction
of the Certificateholders pursuant to Section 8.28 hereof) elects to terminate
the Master Servicer, then Xxxxx Fargo Bank, National Association shall have
the right to elect that the successor Master Servicer, upon its succession,
enter into a primary servicing agreement with Xxxxx Fargo Bank, National
Association with respect to all Mortgage Loans as to which that Primary
Servicing Default occurred, so long as the initial Master Servicer is on the
approved list of commercial mortgage loan servicers maintained by S&P, and
such agreement shall be substantially in the form of Exhibit G-1 or G-2 hereto
(but as if Xxxxx Fargo Bank, National Association were the Primary Servicer or
Sub-Servicer thereunder and with applicable servicing fees and excess fees as
specified on the Mortgage Loan Schedule); and, in the case of an agreement in
the form of Exhibit G-1, thereupon Xxxxx Fargo Bank, National Association
shall be deemed to have been granted the rights and deemed to have assumed the
obligations granted to or imposed on "Primary Servicers" hereunder as to such
Mortgage Loans (and under such Primary Servicing Agreement). For purposes of
the preceding sentence, a "Primary Servicing Default" means an "event of
default" of the related Primary Servicer under the related Primary Servicing
Agreement of either Principal Capital Management, LLC or JHREF or of the
related sub-servicer under the related sub-servicing agreement (in effect as
of the date hereof) of GMAC Commercial Mortgage Corporation. If the Master
Servicer is terminated based upon an Event of Default set forth in clause (i)
(as to the obligation to make P&I Advances), (v) or (x) of Section 8.28(b),
then the Master Servicer shall have the right to enter into a primary
servicing agreement with the successor Master Servicer with respect to all
Mortgage Loans that are not then subject to a Primary Servicing Agreement, so
long as the terminated Master Servicer is on the approved list of commercial
mortgage loan servicers maintained by S&P.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Master Servicer Remittance Date upon which the
final transfer by the Master Servicer to the Paying Agent shall be made, shall
be given promptly in writing by the Master Servicer to the Paying Agent no
later than the later of (i) five Business Days after the final payment or
other liquidation of the last Mortgage Loan or (ii) the sixth day of the month
of such final distribution. Upon any such termination, the duties of the
Master Servicer (other than the obligation of the Master Servicer to pay to
the Paying Agent the amounts remaining in the Certificate Account as set forth
below and the obligations of the Master Servicer to the Trustee and the Trust
and the Fiscal Agent as provided herein) shall terminate and the Master
Servicer shall transfer to the Paying Agent the amounts remaining in the
Certificate Account (and any sub-account) after making the withdrawals
permitted to be made pursuant to Section 5.2 and shall thereafter terminate
the Certificate Account and any other account or fund maintained with respect
to the Mortgage Loans.
(b) On the date specified in a written notice of termination
given to the Master Servicer pursuant to clause (ii) of Section 8.28(a), or on
the date on which a written notice of termination is given to the Master
Servicer pursuant to clause (iii) of Section 8.28(a) all authority, power and
rights of the Master Servicer under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall terminate (except for any rights
relating to unpaid servicing compensation or unreimbursed Advances or, if the
terminated Master Servicer is Xxxxx
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Fargo Bank, National Association, its rights to the Excess Servicing Fee);
provided that in no event shall the termination of the Master Servicer be
effective until a successor servicer shall have succeeded the Master Servicer
as successor servicer, subject to approval by the Rating Agencies, notified
the Master Servicer of such designation and such successor servicer shall have
assumed the Master Servicer's obligations and responsibilities hereunder and
under the Primary Servicing Agreements, as set forth in an agreement
substantially in the form hereof, with respect to the Mortgage Loans and, in
the circumstances set forth in the last sentence of Section 8.28(c), entered
into a new primary servicing agreement with the predecessor Master Servicer in
substantially the same form as Exhibit AA attached hereto. Except as provided
in the next sentence, the Trustee may not succeed the Master Servicer as
servicer until and unless it has satisfied the provisions that would apply to
a Person succeeding to the business of the Master Servicer pursuant to Section
8.22(b) hereof. Notwithstanding the foregoing sentence, in the event that the
Master Servicer is terminated as a result of an event described in Section
8.28(b)(vii), 8.28(b)(viii) or 8.28(b)(ix), the Trustee shall act as successor
servicer immediately upon delivery of a notice of termination to the Master
Servicer and shall use commercially reasonable efforts within 90 days of
assuming the duties of the Master Servicer, either to satisfy the conditions
of Section 8.22(b) hereof or to transfer the duties of the Master Servicer to
a successor servicer who has satisfied such conditions. The Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents or otherwise. The Master Servicer agrees to cooperate with
the Trustee, the Paying Agent and the Fiscal Agent in effecting the
termination of the Master Servicer's responsibilities and rights hereunder as
Master Servicer including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee all documents
and records in electronic or other form reasonably requested by it to enable
the successor servicer designated by the Trustee to assume the Master
Servicer's functions hereunder and to effect the transfer to such successor
for administration by it of all amounts which shall at the time be or should
have been deposited by the Master Servicer in the Certificate Account and any
other account or fund maintained or thereafter received with respect to the
Mortgage Loans.
(c) If the Master Servicer receives a written notice of
termination pursuant to clause (ii) of Section 8.28(a) relating solely to an
Event of Default set forth in clause (v) or (x) of Section 8.28(b), and if the
Master Servicer provides the Trustee with the appropriate "request for
proposal" materials within five Business Days after receipt of such written
notice of termination, then the Trustee shall promptly thereafter (using such
"request for proposal" materials provided by the Master Servicer) solicit good
faith bids for the rights to service the Mortgage Loans under this Agreement
from at least three but no more than five Qualified Bidders or, if three
Qualified Bidders cannot be located, then from as many persons as the Trustee
can determine are Qualified Bidders. At the Trustee's request, the Master
Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage
Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as
a condition of its bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the
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terms hereof and the terms of the Primary Servicing Agreements, not later than
30 days after termination of the Master Servicer hereunder. The Trustee shall
select the Qualified Bidder with the highest cash bid (or such other Qualified
Bidder as the Master Servicer may direct) (the "Successful Bidder") to act as
successor Master Servicer hereunder. The Trustee shall direct the Successful
Bidder to enter into this Agreement as successor Master Servicer pursuant to
the terms hereof, and in connection therewith to deliver the amount of the
Successful Bidder's cash bid to the Trustee by wire transfer of immediately
available funds to an account specified by the Trustee no later than 10:00
a.m. New York City time on the date specified for the assignment and
assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing rights
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of all
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m.
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
(f) If the Successful Bidder has not entered into this
Agreement as successor Master Servicer within 30 days after the termination of
the Master Servicer hereunder or no Successful Bidder was identified within
such 30-day period, the Trustee shall have no further obligations under
Section 8.29(c) and may act or may select another successor to act as Master
Servicer hereunder in accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this Section
8.29, the successor master servicer must assume all of the obligations of the
terminated Master Servicer under the Primary Servicing Agreements (and the
subservicing agreement (in effect as of the date hereof) of GMAC Commercial
Mortgage Corporation) as a condition precedent to its becoming Master Servicer
hereunder.
For purposes of the foregoing provisions of Section 8.29(c),
the phrase "rights to service" shall be construed to exclude those servicing
rights and duties as to which Xxxxx Fargo Bank, National Association has made
an election for the execution of a primary servicing agreement as contemplated
by Section 8.28(c).
SECTION 8.30 SWAP CONTRACT.
(a) On the Closing Date, the Trustee, not in its individual
capacity but solely in its capacity as Trustee on behalf of the Trust, is
hereby directed to enter into the Assignment of Swap Contract. The Trustee
shall enforce in a commercially reasonable manner the terms of the Swap
Contract, including, without limiting the generality of the foregoing, the
Credit Support Annex and the terms of the Schedule to the related ISDA Master
Agreement.
(b) On the second Business Day prior to each Distribution
Date, based on the reports provided by the Master Servicer or on information
that the Paying Agent obtains from the Swap Counterparty pursuant to the Swap
Contract, and subject to the priorities set forth in Article VI hereof, the
Paying Agent shall calculate the Net Swap Payment, if any, due to the
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Swap Counterparty under the Swap Contract, based upon the projected payment
that will be payable on the Class A-2 Regular Interest pursuant to the
priorities set forth in Article VI hereof and the Pass-Through Rate of the
Class A-2 Regular Interest and the Class A-2 Certificates and the amount of
any Prepayment Premiums payable on the Class A-2 Regular Interest. By the
close of business on the second Business Day prior to each Distribution Date,
the Paying Agent shall provide written notice to the Master Servicer (or, if
applicable, the Special Servicer) of the Net Swap Payment, if any, required to
be distributed to the Swap Counterparty pursuant to the terms of the Swap
Contract and will provide such notice even if no amounts are due to the Swap
Counterparty. The Master Servicer shall be deemed to have distributed the Net
Swap Payment specified by the Paying Agent in accordance with 5.3(c) and this
Section 8.30(b) as part of the Available Distribution Amount and the Paying
Agent shall be deemed to have transferred such Net Swap Payment to the Master
Servicer's Floating Rate Account. Accordingly, the Master Servicer shall
withhold an amount equal to the Net Swap Payment from payments made to the
Paying Agent pursuant to Section 5.2(a)(xi) and shall pay such amount to the
Swap Counterparty.
Any termination payments due to the Swap Counterparty under the
Swap Contract shall be payable solely from any portion of the Fixed Interest
Distribution remaining after all other amounts have been paid under the Class
A-2 Regular Interest and the Class A-2 Certificates (including all Unpaid
Interest and principal amounts outstanding).
(c) Promptly upon receipt of any payment or other receipt in
respect of the Class A-2 Regular Interest or the Swap Contract, the Paying
Agent shall deposit the same into the Floating Rate Account.
(d) Subject to Section 6.12 hereof, if a Rating Agency Trigger
Event occurs, the Trustee will enforce in a commercially reasonable manner the
Trust Fund's rights to the Swap Counterparty's obligations to post collateral
or find a replacement swap counterparty that would not cause a Rating Agency
Trigger Event.
(e) The Trustee and the Paying Agent will have no obligation
on behalf of the Trust Fund to pay to the Swap Counterparty any portion of the
Fixed Interest Distribution unless and until the interest payment on the Class
A-2 Regular Interest is actually received by the Paying Agent; provided,
however, that the Paying Agent shall receive funds from the Swap Counterparty
representing the net amount payable to the Paying Agent pursuant to the Swap
Contract and shall remit such amount to the holders of the Class A-2
Certificates as part of the Class A-2 Interest Distribution Amount pursuant to
Section 6.12. The Master Servicer shall, at the direction of the Paying Agent,
pay to the Swap Counterparty the portion of interest and other amounts payable
on the Class A-2 Regular Interest which is equal to the net swap payment due
to the Swap Counterparty pursuant to the Swap Contract (the "Net Swap
Payment").
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ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE
LOANS BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement, for
and on behalf of the Trust and for the benefit of the Certificateholders as a
whole, and, solely as it relates to any A/B Mortgage Loan, for the benefit of
the holder of the related B Note, the Special Servicer shall service the
Specially Serviced Mortgage Loans and manage the related REO Properties in
accordance with the provisions of this Agreement and the Servicing Standard
(subject to the servicing of the Pari Passu Loan by the 2001-TOP3 Master
Servicer and the 2001-TOP3 Special Servicer in accordance with the 2001-TOP3
Pooling and Servicing Agreement). Certain of the provisions of this Article IX
make explicit reference to their applicability to Mortgage Loans and any B
Note; notwithstanding such explicit references, references in this Article IX
to "Mortgage Loans" shall be construed, unless otherwise specified, to refer
also to such B Note (but any other terms that are defined in Article I and
used in this Article IX shall be construed according to such definitions
without regard to this sentence).
(b) The Special Servicer shall cooperate with the Master
Servicer and provide the Master Servicer with the information reasonably
requested by the Master Servicer, in writing, to the extent required to allow
the Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide such ad hoc reports, the Special Servicer may
require the Master Servicer to pay a reasonable fee to cover the costs of the
preparation thereof. The Special Servicer's obligations with respect to the
servicing of any Specially Serviced Mortgage Loan and any related REO
Properties shall terminate when such Specially Serviced Mortgage Loan has
become a Rehabilitated Mortgage Loan, unless and until another Servicing
Transfer Event with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the
Master Servicer and the Paying Agent within two Business Days after becoming
aware that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which
notice shall identify the applicable Mortgage Loan. Upon the receipt of such
notice by the Master Servicer and the Paying Agent, such Mortgage Loan shall
become a Rehabilitated Mortgage Loan and will be serviced by the Master
Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Master Servicer shall xxxx its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the Master Servicer of any changes to be made, and
return the monthly statement to the Master Servicer. The Master Servicer shall
thereafter promptly send the corrected monthly statement to the Mortgagor. If
a Mortgage Loan becomes a Rehabilitated
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Mortgage Loan, the Master Servicer shall send the monthly statement to the
Mortgagor as it did before such Mortgage Loan became a Specially Serviced
Mortgage Loan.
(e) All amounts collected by the Master Servicer with respect
to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that has
become an REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a B
Note) shall be deposited in the Certificate Account, and all amounts collected
by the Master Servicer with respect to a Specially Serviced Mortgage Loan that
is a B Note shall be deposited in the related A/B Loan Custodial Account. The
Master Servicer shall within three Business Days after receipt of any such
payment, notify the Special Servicer of the receipt of such payment and the
amount thereof. The Special Servicer shall, within one Business Day
thereafter, instruct the Master Servicer in writing how to apply such payment
(with the application of such payments to be made in accordance with the
related Mortgage Loan documents (including the related Intercreditor
Agreement, if any) or in accordance with this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event with
respect to any one or more Mortgage Loans that are the subject of any
Environmental Insurance Policy, (i) the Special Servicer shall monitor the
dates by which any claim must be made or action must be taken under such
Environmental Insurance Policy to achieve the payment of all amounts
thereunder to which the Trust is entitled in the event the Special Servicer
has actual knowledge of any event giving rise to a claim under such
Environmental Insurance Policy (an "Insured Environmental Event") and (ii) if
the Special Servicer has actual knowledge of an Insured Environmental Event
with respect to such Mortgage Loan, the Special Servicer shall take reasonable
actions as are in accordance with the Servicing Standard and the terms and
conditions of the related Environmental Insurance Policy to make a claim
thereunder and achieve the payment of all amounts to which the Trust is
entitled thereunder. Any legal fees or other out-of-pocket costs incurred in
accordance with the Servicing Standard in connection with any such claim shall
be paid by, and reimbursable to, the Master Servicer as a Servicing Advance.
All extraordinary expenses (but not ordinary and routine or anticipated
expenses) incurred by the Special Servicer in fulfilling its obligations under
this Section 9.1 shall be paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall
maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Special Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be
in effect, the Special Servicer shall obtain a comparable replacement policy
or bond from an insurer or issuer meeting the requirements set forth above as
of the date of such replacement. So long as the long-term rating of the
Special Servicer is not less than two rating categories (ignoring pluses or
minuses) lower than the highest rating of the Certificates, but in any event
not less than "BBB" as rated by S&P and "A2" as rated by Xxxxx'x, the Special
Servicer may self-insure for the Servicer Fidelity Bond and the Servicer Error
and Omissions Insurance Policy.
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SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have the
right to use a Sub-Servicer on the same terms and conditions as those set
forth in Section 8.4 for a Sub-Servicer of the Master Servicer. The Special
Servicer shall notify the Master Servicer, Trustee and solely as it relates to
any A/B Mortgage Loan, to the holder of the related B Note, of the appointment
of any Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this
Agreement, the Special Servicer is hereby authorized and empowered when the
Special Servicer believes it appropriate in accordance with the Servicing
Standard, to take any and all the actions with respect to Specially Serviced
Mortgage Loans which the Master Servicer may perform as set forth in Section
8.3(a), including (i) to execute and deliver, on behalf of itself or the Trust
(or holder of a B Note, as applicable), any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge and
all other comparable instruments, with respect to the Specially Serviced
Mortgage Loans and with respect to the related REO Properties and (ii) to
effectuate foreclosure or other conversion of the ownership of any REO
Property securing a Mortgage Loan. The Trustee shall execute on the Closing
Date a Power of Attorney in the form of Exhibit S-2 hereto and shall furnish
the Special Servicer from time to time, upon request, with any additional
powers of attorney of the Trust, empowering the Special Servicer to take such
actions as it determines to be reasonably necessary to comply with its
servicing, administrative and management duties hereunder, and the Trustee
shall execute and deliver or cause to be executed and delivered such other
documents as a Special Servicing Officer may request, that are necessary or
appropriate to enable the Special Servicer to service, administer and manage
the Specially Serviced Mortgage Loans and carry out its duties hereunder, in
each case as the Special Servicer determines is in accordance with the
Servicing Standard and the terms of this Agreement; provided, that, prior to
initiating any proceedings in any court of law or equity (but not defending
any proceedings in any court of law or equity) or instituting any proceeding
to foreclose on any Mortgaged Property in the name of the Trust in any state,
the Special Servicer shall notify the Trustee in writing and not institute or
initiate any such proceedings for a period of five Business Days from the date
of its delivery of such notice to the Trustee, unless the Special Servicer
reasonably believes that such action should be taken in less than five
Business Days to preserve the property of the Trust for the benefit of
Certificateholders, and the Trustee may within five Business Days of its
receipt of such notice advise the Special Servicer that it has received an
Opinion of Counsel (the cost of which shall be an expense of the Trust) from
an attorney duly licensed to practice law in the state where the related
Mortgaged Property or REO Property is located, that it is likely that the laws
of the state in which said action is to be taken either prohibit such action
if taken in the name of the Trust or that the Trust would be adversely
affected under the "doing business" or tax laws of such state if such action
is taken in its name; provided, further, that the Special Servicer shall not
be liable to the extent that it relies on the advice provided in such Opinion
of Counsel. Upon receipt of any such advice from the Trustee, the Special
Servicer shall take such action in the name of such Person or Persons, in
trust for the Trust (or holder of a B Note, if applicable), as shall be
consistent with the Opinion of Counsel obtained by the Trustee. Such Person or
Persons shall acknowledge in writing that such action is being taken by the
Special Servicer in the name of the Trust (or holder of a B Note, if
applicable). In the performance of its duties hereunder, the Special Servicer
shall be an independent contractor and shall not, except in those instances
where it is, after notice to the
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Trustee as provided above, taking action in the name of the Trust (or holder
of a B Note, if applicable), be deemed to be the agent of the Trust (or holder
of a B Note, as applicable). The Special Servicer shall indemnify the Trustee
for any loss, liability or reasonable expense (including attorneys' fees)
incurred by the Trustee or any director, officer, employee, agent or
Controlling Person of it or its affiliates in connection with any negligent or
intentional misuse of the foregoing powers of attorney furnished to the
Special Servicer by the Trustee. Such indemnification shall survive the
resignation or termination of the Special Servicer hereunder, the resignation
or termination of the Trustee and the termination of this Agreement. The
Special Servicer shall not have any responsibility or liability for any act or
omission of the Trustee, the Master Servicer or the Depositor that is not
attributable to the failure of the Special Servicer to perform its obligations
hereunder. The Special Servicer may conclusively rely on any advice of counsel
rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special Servicer
shall employ procedures consistent with the Servicing Standard. The Special
Servicer shall conduct, or cause to be conducted, inspections, at its own
expense, of the Mortgaged Properties relating to Specially Serviced Mortgage
Loans at such times and in such manner as shall be consistent with the
Servicing Standard; provided, that the Special Servicer shall conduct, or
cause to be conducted, inspections of the Mortgaged Properties relating to
Specially Serviced Mortgage Loans at least once during each twelve-month
period that ends on June 30 of any calendar year (commencing with the
twelve-month period ending June 30, 2002); provided further that the Special
Servicer shall, at the expense of the Trust, inspect or cause to be inspected
each Mortgaged Property related to a Mortgage Loan that is delinquent for
sixty (60) days in the payment of any amounts due under such Mortgage Loan.
The Special Servicer shall provide to the Master Servicer (who shall provide,
solely as it relates to any A/B Mortgage Loan, to the holder of the related B
Note) and the Operating Adviser copies of the Inspection Reports relating to
such inspections as soon as practicable after the completion of any
inspection.
(c) Pursuant to the Pari Passu Intercreditor Agreement, the
owner of the Pari Passu Loan has agreed that such owner's rights in, to and
under the Pari Passu Loan are subject to the servicing and all other rights of
the 2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer and the
2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer are authorized
and obligated to service and administer the Pari Passu Loan pursuant to the
2001-TOP3 Pooling and Servicing Agreement. Notwithstanding anything herein to
the contrary, the parties hereto acknowledge and agree that the Special
Servicer's obligations and responsibilities hereunder and the Special
Servicer's authority with respect to the Pari Passu Loan are limited by and
subject to the terms of the Pari Passu Intercreditor Agreement and the rights
of the 2001-TOP3 Master Servicer and the 2001-TOP3 Special Servicer with
respect thereto under the 2001-TOP3 Pooling and Servicing Agreement. The
Special Servicer shall take such actions as it shall deem reasonably necessary
to facilitate the servicing of the Pari Passu Loan by the 2001-TOP3 Master
Servicer and the 2001-TOP3 Special Servicer including, but not limited to,
delivering appropriate Requests for Release to the Trustee and Custodian (if
any) in order to deliver any portion of the related Mortgage File to the
2001-TOP3 Master Servicer or 2001-TOP3 Special Servicer under the 2001-TOP3
Pooling and Servicing Agreement.
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SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special
Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Specially Serviced Mortgage Loan
shall (or may at the Mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property, or
(ii) provides that such Specially Serviced Mortgage Loan
may not be assumed without the consent of the related mortgagee in connection
with any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 5% of the Aggregate Certificate Balance or is one of the then current
top 10 loans (by Principal Balance) in the pool, then prior to waiving the
effect of such provision, the Special Servicer shall obtain Rating Agency
Confirmation regarding such waiver. In connection with the request for such
consent, the Special Servicer shall prepare and deliver to S&P and Xxxxx'x a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall also prepare and provide S&P and Xxxxx'x with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the threshold set forth above, but for
which the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b). The Special Servicer shall be entitled to 100% of all assumption
fees in connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is
also authorized to take or enter into an assignment and assumption agreement
from or with the Person to whom such property has been or is about to be
conveyed, and/or to release the original Mortgagor from liability upon the
Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor
thereon; provided, that except as otherwise permitted by Section 9.5(c), any
such assignment and assumption or substitution agreement shall contain no
terms that could result in an Adverse REMIC Event. To the extent permitted by
law, the Special Servicer shall enter into an assumption or substitution
agreement that is required under the related Mortgage Loan documents (either
as a matter of right or upon satisfaction of specified conditions) and shall
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otherwise enter into any assumption or substitution agreement only if the
credit status of the prospective new mortgagor and the underwriting of the new
mortgagor is in compliance with the Special Servicer's regular commercial
mortgage origination or servicing standards and criteria. The Special Servicer
shall notify the Master Servicer of any such assignment and assumption or
substitution agreement and the Special Servicer shall forward to the Trustee
the original of such agreement, which original shall be added by the Trustee
to the related Mortgage File and shall, for all purposes, be considered a part
of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer
consent to the creation of any lien on a Mortgaged Property that is senior to,
or on a parity with, the lien of the related Mortgage. Nothing in this Section
9.5 shall constitute a waiver of the Trustee's right, as the mortgagee of
record, to receive notice of any assignment and assumption of a Specially
Serviced Mortgage Loan, any sale or other transfer of the related Mortgaged
Property or the creation of any lien or other encumbrance with respect to such
Mortgaged Property.
(c) Subject to the Servicing Standard and Sections 9.39 and
9.40, and the rights and duties of the Master Servicer under Section 8.18, the
Special Servicer may enter into any modification, waiver or amendment
(including, without limitation, the substitution or release of collateral or
the pledge of additional collateral) of the terms of any Specially Serviced
Mortgage Loan, including any modification, waiver or amendment to (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest and/or any Prepayment Premium, (ii) reduce the
amount of the Scheduled Payment on any Specially Serviced Mortgage Loan,
including by way of a reduction in the related Mortgage Rate, (iii) forbear in
the enforcement of any right granted under any Mortgage Note or Mortgage
relating to a Specially Serviced Mortgage Loan, (iv) extend the Maturity Date
of any Specially Serviced Mortgage Loan and/or (v) accept a principal
prepayment on any Specially Serviced Mortgage Loan during any period during
which voluntary Principal Prepayments are prohibited, provided, in the case of
any such modification, waiver or amendment, that (A) the related Mortgagor is
in default with respect to the Specially Serviced Mortgage Loan or, in the
reasonable judgment of the Special Servicer, such default is reasonably
foreseeable, (B) in the reasonable judgment of the Special Servicer, such
modification, waiver or amendment would increase the recovery on the Specially
Serviced Mortgage Loan to Certificateholders on a net present value basis (the
relevant discounting of amounts that will be distributable to
Certificateholders to be performed at related Mortgage Rate), (C) such
modification, waiver or amendment would not cause an Adverse REMIC Event to
occur, and (D) if notice to the Operating Adviser of such modification, waiver
or amendment is required pursuant to Section 9.39, the Special Servicer has
made such notice. Any modification of the monthly payments of an A/B Mortgage
Loan shall be allocated in accordance with the Intercreditor Agreement.
In no event, however, shall the Special Servicer (i) extend the
Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is two
years prior to the later Rated Final Distribution Date or (ii) if the
Specially Serviced Mortgage Loan is secured by a ground lease, extend the
Maturity Date of such Specially Serviced Mortgage Loan unless the Special
Servicer gives due consideration to the remaining term of such ground lease.
The Special Servicer shall not extend the Maturity Date of any Mortgage Loan
secured by a Mortgaged Property covered
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by a group secured creditor impaired property environmental insurance policy
for more than five years beyond such Mortgage Loan's Maturity Date unless a
new Phase I Environmental Report indicates that there is no environmental
condition or the Mortgagor obtains, at its expense, an extension of such
policy on the same terms and conditions to cover the period through five years
past the extended Maturity Date, provided that, (i) if such Mortgage Loan is
secured by a ground lease, the Special Servicer shall give due consideration
to the remaining term of the ground lease and (ii) in no case shall the
Maturity Date of any such Mortgage Loan be extended past a date that is two
years prior to the later Rated Final Distribution Date.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph of this Section 9.5(c) shall
be evidenced by an Officer's Certificate certifying the information in the
proviso to the first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a
Mortgagor to substitute collateral for all or any portion of a Mortgaged
Property pursuant to Section 9.5(c) or pledge additional collateral for the
Mortgage Loan pursuant to Section 9.5(c), if the security interest of the
Trust or the holder of any B Note in such collateral would be perfected by
possession, or if such collateral requires special care or protection, then
prior to agreeing to such substitution or addition of collateral, the Special
Servicer shall make arrangements for such possession, care or protection, and
prior to agreeing to such substitution or addition of collateral (or such
arrangement for possession, care or protection) shall obtain the prior written
consent of the Trustee with respect thereto (which consent shall not be
unreasonably withheld, delayed or conditioned); provided, however, that the
Trustee shall not be required (but has the option) to consent to any
substitution or addition of collateral or to hold any such collateral which
will require the Trustee to undertake any additional duties or obligations or
incur any additional expense. Notwithstanding the foregoing, the Special
Servicer will not permit a Mortgagor to substitute collateral for any portion
of the Mortgaged Property pursuant to Section 9.5(c) unless it shall have
received a Rating Agency Confirmation in connection therewith, the costs of
which to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. If the Mortgagor is not required to pay for the
Rating Agency Confirmation, then such expense will be paid by the Trust. The
parties hereto acknowledge that if the Trust incurs any Additional Trust
Expense associated solely with the release of collateral that is not required
to be paid by a Mortgagor pursuant to the related Mortgage Loan documents (and
such Additional Trust Expense is not paid by the Mortgagor), including, but
not limited to, rating agency fees, then the sole obligation of the related
Seller shall be to pay an amount equal to such expense to the extent the
related Mortgagor is not required to pay them. Promptly upon receipt of notice
of such unpaid expense, regarding a Specially Serviced Mortgage Loan, the
Special Servicer shall request the related Seller to make such payment by
deposit to the Certificate Account.
(e) The Special Servicer will promptly deliver to the Master
Servicer, the Operating Adviser, the Trustee, the Paying Agent and the Rating
Agencies a notice, specifying any such assignments and assumptions,
modifications, waivers or amendments, such notice identifying the affected
Specially Serviced Mortgage Loan. Such notice shall set forth the reasons for
such waiver, modification, or amendment (including, but not limited to,
information such as related income and expense statements, rent rolls,
occupancy status, property inspections, and an internal or external appraisal
performed in accordance with MAI standards and
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methodologies (and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section 4.4
hereof)). The Special Servicer shall also deliver to the Trustee (or the
Custodian), for deposit in the related Mortgage File, an original counterpart
of the agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
(f) No fee described in this Section shall be collected by the
Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation ss. 1.860G-2(b).
Subject to the foregoing, the Special Servicer shall use its reasonable
efforts, in accordance with the Servicing Standard, to collect any
modification fees and other expenses connected with a permitted modification
of a Mortgage Loan from the Mortgagor. The inability of the Mortgagor to pay
any costs and expenses of a proposed modification shall not impair the right
of the Special Servicer, the Master Servicer or the Trustee to be reimbursed
by the Trust for such expenses (including any cost and expense associated with
the Opinion of Counsel referred to in this Section).
(g) The Special Servicer shall cooperate with the Master
Servicer (as provided in Section 8.7) in connection with assignments and
assumptions of Mortgage Loans that are not Specially Serviced Mortgage Loans,
and shall be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed pursuant to
Section 8.7(a) and 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section
8.7(b). The Special Servicer shall be entitled to 100% of any assumption fee
received in connection with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i) the
Special Servicer shall not have any right or obligation to consult with or to
seek and/or obtain consent or approval from the Operating Adviser prior to
acting, and provisions of this Agreement requiring such shall be of no effect,
if the Operating Adviser resigns or is removed, during the period following
such resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by
this Agreement, may (and the Special Servicer shall ignore and act without
regard to any such advice, direction or objection that the Special Servicer
has determined, in its reasonable good faith judgment would) (A) require or
cause the Special Servicer to violate applicable law, the terms of any
Mortgage Loan, any provision of this Agreement or the REMIC Provisions,
including the Special Servicer's obligation to act in accordance with the
Servicing Standard, (B) result in an Adverse REMIC Event with respect to any
REMIC Pool, (C) expose the Trust, the Depositor, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Paying Agent or the Trustee, or any of
their respective Affiliates, officers, directors, employees or agents, to any
material claim, suit or liability, or (D) materially expand the scope of the
Special Servicer's responsibilities under this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains a
provision in the nature of a "due-on-encumbrance" clause, which by its terms:
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(i) provides that such Mortgage Loan shall (or may at
the mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on the related
Mortgaged Property,
then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any
Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, or the complete defeasance of a Mortgage Loan, the Special
Servicer will immediately notify the Master Servicer. The Special Servicer
shall determine, in accordance with the Servicing Standard, whether an
instrument of satisfaction shall be delivered and, if the Special Servicer
determines that such instrument should be delivered, the Special Servicer
shall deliver written approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the
Trustee shall execute or cause to be executed such documents as shall be
prepared and furnished to the Trustee by a Special Servicing Officer (in form
reasonably acceptable to the Trustee) and as are necessary for such purposes.
The Trustee or Custodian shall, upon request of the Special Servicer and
delivery to the Trustee or Custodian of a request for release signed by a
Special Servicing Officer substantially in the form of Exhibit C, release the
related Mortgage File to the Special Servicer. After the transfer of servicing
with respect to any Specially Serviced Mortgage Loan to the Special Servicer,
in accordance with the Servicing Standard, the Master Servicer shall notify,
in writing, the Mortgagor under each Specially Serviced Mortgage Loan
transferred to the Special Servicer, of such transfer.
(c) The Special Servicer shall send notification in writing,
to the Master Servicer to request any documents and instruments in the
possession of the Master Servicer related to any Specially Serviced Mortgage
Loan.
(d) The Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the Master Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect
to any Rehabilitated Mortgage Loan to the Master Servicer in accordance with
the
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Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE
(a) The Special Servicer shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Special Servicer as from time to time are required by the terms hereof to be
delivered to the Trustee. Any funds received by the Special Servicer in
respect of any Specially Serviced Mortgage Loan or any REO Property or which
otherwise are collected by the Special Servicer as Liquidation Proceeds,
Condemnation Proceeds or Insurance Proceeds in respect of any Specially
Serviced Mortgage Loan or any REO Property shall be transmitted to the Master
Servicer within one Business Day of receipt to the Certificate Account, except
that if such amounts relate to REO Income, they shall be deposited in the REO
Account. The Special Servicer shall provide access to information and
documentation regarding the Specially Serviced Mortgage Loans to the Trustee,
the Master Servicer, the Fiscal Agent, the Paying Agent, the Operating Adviser
and their respective agents and accountants at any time upon reasonable
written request and during normal business hours, provided that the Special
Servicer shall not be required to take any action or provide any information
that the Special Servicer determines will result in any material cost or
expense to which it is not entitled to reimbursement hereunder or will result
in any material liability for which it is not indemnified hereunder; provided
further that the Trustee and the Paying Agent shall be entitled to receive
from the Special Servicer all such information as the Trustee and the Paying
Agent shall reasonably require to perform their respective duties hereunder.
In fulfilling such a request, the Special Servicer shall not be responsible
for determining whether such information is sufficient for the Trustee's, the
Master Servicer's, the Fiscal Agent's, the Paying Agent's or the Operating
Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust
(and/or the holder of the related B Note, if an A/B Mortgage Loan is involved)
owns the Specially Serviced Mortgage Loans and all Mortgage Files representing
such Specially Serviced Mortgage Loans and all funds now or hereafter held by,
or under the control of, the Special Servicer that are collected by the
Special Servicer in connection with the Specially Serviced Mortgage Loans (but
excluding any Special Servicer Compensation and all other amounts to which the
Special Servicer is entitled hereunder); and the Special Servicer agrees that
all documents or instruments constituting part of the Mortgage Files, and such
funds relating to the Specially Serviced Mortgage Loans which come into the
possession or custody of, or which are subject to the control of, the Special
Servicer, shall be held by the Special Servicer for and on behalf of the Trust
(or the holder of the related B Note, if an A/B Mortgage Loan is involved).
(c) The Special Servicer also agrees that it shall not create,
incur or subject any Specially Serviced Mortgage Loans, or any funds that are
required to be deposited in any REO Account to any claim, lien, security
interest, judgment, levy, writ of attachment or other encumbrance, nor assert
by legal action or otherwise any claim or right of setoff against any
Specially Serviced Mortgage Loan or any funds, collected on, or in connection
with, a Specially Serviced Mortgage Loan.
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SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) The Special Servicer hereby represents and warrants to and
covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the State of
California, and shall be in compliance with the laws of each State in which
any Mortgaged Property (including any REO Property) which is, or is related to
a Specially Serviced Mortgage Loan is located to the extent necessary to
perform its obligations under this Agreement, except where the failure to so
qualify or comply would not adversely affect the Special Servicer's ability to
perform its obligations hereunder in accordance with the terms of this
Agreement;
(ii) the Special Servicer has the full power and
authority to execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Special
Servicer has duly and validly authorized the execution, delivery and
performance of this Agreement and this Agreement has been duly executed and
delivered by the Special Servicer; and this Agreement, assuming the due
authorization, execution and delivery thereof by the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent and the Master Servicer, evidences the
valid and binding obligation of the Special Servicer enforceable against the
Special Servicer in accordance with its terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium,
receivership and other similar laws affecting creditors' rights generally as
from time to time in effect, and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law);
(iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the fulfillment of
or compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or (2)
conflict with, result in a breach, violation or acceleration of, or result in
a default under, the terms of any other material agreement or instrument to
which it is a party or by which it may be bound, or any law, governmental
rule, regulation, or judgment, decree or order applicable to it of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects its ability to
perform its obligations under this Agreement;
(iv) no litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against it, the outcome of which, in
the Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any
of its other obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of any
court or governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated
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hereby, or if any such consent, approval, authorization or order is required,
it has obtained the same or will obtain the same prior to the time necessary
to perform its obligations under this Agreement, and, except to the extent in
the case of performance, that its failure to be qualified as a foreign
corporation or licensed in one or more states is not necessary for the
performance by it of its obligations hereunder.
(b) It is understood that the representations and warranties
set forth in this Section 9.8 shall survive the execution and delivery of this
Agreement.
(c) Any cause of action against the Special Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon the giving of written notice to the Special Servicer by any
of the Trustee, the Master Servicer, the Paying Agent or the Fiscal Agent. The
Special Servicer shall give prompt notice to the Trustee, the Fiscal Agent,
the Paying Agent, the Depositor, the Operating Adviser and the Master Servicer
of the occurrence, or the failure to occur, of any event that, with notice, or
the passage of time or both, would cause any representation or warranty in
this Section to be untrue or inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, the Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain with a
Qualified Insurer a Standard Hazard Insurance Policy which does not provide
for reduction due to depreciation in an amount which is not less than the full
replacement cost of the improvements of such REO Property or in an amount not
less than the unpaid Principal Balance plus all unpaid interest and the
cumulative amount of Servicing Advances (plus Advance Interest) made with
respect to such Mortgage Loan, whichever is less, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause. If the
improvements to the Mortgaged Property are in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards (and such flood insurance has been made available), the Special
Servicer shall maintain a flood insurance policy meeting the requirements of
the current guidelines of the Federal Insurance Administration in an amount
representing coverage equal to the lesser of the then outstanding Principal
Balance of the Specially Serviced Mortgage Loan and unpaid Advances (plus
Advance Interest) and the maximum insurance coverage required under such
current guidelines. It is understood and agreed that the Special Servicer has
no obligation to obtain earthquake or other additional insurance on REO
Property, except as required by law and, nevertheless, at its sole option and
at the Trust's expense, it (if required at origination and is available at
commercially reasonable rates) may obtain such earthquake insurance. The
Special Servicer shall use its reasonable efforts, consistent with the
Servicing Standard, to obtain a comprehensive general liability insurance
policy for all REO Properties. The Special Servicer shall, to the extent
available at commercially reasonable rates (as determined by the Special
Servicer in accordance with the Servicing Standard) and to the extent
consistent with the Servicing Standard, use its reasonable efforts to maintain
a Rent Loss Policy covering revenues for a period of at least twelve months
and a comprehensive general liability policy with coverage comparable to
prudent lending requirements in an amount not less than $1 million per
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occurrence. All applicable policies required to be maintained by the Special
Servicer pursuant to this Section 9.9(a) shall name the Trustee as loss payee
and be endorsed with a standard mortgagee clause. The costs of such insurance
shall be a Servicing Advance, subject to the provisions of Section 4.4 hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining
the insurance required hereby for any REO Property shall be a Servicing
Advance, subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall not
be required in any event to maintain or obtain insurance coverage beyond what
is reasonably available at a cost customarily acceptable and consistent with
the Servicing Standard. The Special Servicer shall notify the Trustee of any
such determination.
The Special Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 9.9 either (i) if the
Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the
applicable Mortgage Loans serviced by it, it being understood and agreed that
such policy may contain a deductible clause on terms substantially equivalent
to those commercially available and maintained by comparable servicers
consistent with the Servicing Standard, and provided that such policy is
issued by a Qualified Insurer with a minimum claims paying ability rating of
at least "A-" by S&P and "A2" by Xxxxx'x or otherwise approved by the Rating
Agencies or (ii) if the Special Servicer, provided that the rating of such
Person's long-term debt is not less than "A-" by S&P and "A2" by Xxxxx'x
self-insures for its obligations as set forth in the first paragraph of this
Section 9.9. In the event that the Special Servicer shall cause any Mortgage
Loan to be covered by such a master force placed or blanket insurance policy,
the incremental cost of such insurance allocable to such Mortgage Loan (i.e.,
other than any minimum or standby premium payable for such policy whether or
not any Mortgage Loan is then covered thereby), if not borne by the related
Mortgagor, shall be paid by the Special Servicer as a Servicing Advance,
subject to the provisions of Section 4.4 hereof. If such policy contains a
deductible clause, the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property a policy complying with this
Section 9.9 and there shall have been a loss that would have been covered by
such policy, deposit in the Certificate Account the amount not otherwise
payable under such master force placed or blanket insurance policy because of
such deductible clause to the extent that such deductible exceeds (i) the
deductible under the related Mortgage Loan or (ii) if there is no deductible
limitation required under the Mortgage Loan, the deductible amount with
respect to insurance policies generally available on properties similar to the
related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and
servicer of the Mortgage Loans, the Special Servicer agrees to present, on its
behalf and on behalf of the Trustee, claims under any such master force placed
or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
The Special Servicer will prepare and present or cause to be prepared and
presented on behalf of the Trustee
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all claims under the Insurance Policies with respect to REO Property, and take
such actions (including the negotiation, settlement, compromise or enforcement
of the insured's claim) as shall be necessary to recover under such policies.
Any proceeds disbursed to the Special Servicer in respect of such policies
shall be promptly remitted to the Certificate Account, upon receipt, except
for any amounts realized that are to be applied to the repair or restoration
of the applicable REO Property in accordance with the Servicing Standard. Any
extraordinary expenses (but not ordinary and routine or anticipated expenses)
incurred by the Special Servicer in fulfilling its obligations under this
Section 9.10 shall be paid by the Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the Special
Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property (whether arising pursuant to
a sale, condemnation or otherwise). With respect to each REO Mortgage Loan
that is a successor to a Mortgage Loan secured by two or more Mortgaged
Properties, the reference to "REO Property" in the preceding sentence shall be
construed on a property-by-property basis to refer separately to the acquired
real property that is a successor to each of such Mortgaged Properties,
thereby entitling the Special Servicer to a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of, and
Condemnation Proceeds received in connection with, each such acquired property
as the Liquidation Proceeds related to that property are received. The Special
Servicer shall also be entitled to additional special servicing compensation
of an amount equal to the excess, if any, of the aggregate Prepayment Interest
Excess relating to Mortgage Loans which are Specially Serviced Mortgage Loans
which have received voluntary Principal Prepayments not from Liquidation
Proceeds or from modifications of Specially Serviced Mortgage Loans for each
Distribution Date over the aggregate Prepayment Interest Shortfalls for such
Mortgage Loans for such Distribution Date. If the Special Servicer resigns or
is terminated for any reason, it shall retain the right to receive any
Work-Out Fees payable on Mortgage Loans that became Rehabilitated Mortgage
Loans while it acted as Special Servicer and remained Rehabilitated Mortgage
Loans at the time of such resignation or termination for so long as such
Mortgage Loan remains a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the Master
Servicer to withdraw (i) from the Certificate Account, the Special Servicer
Compensation in respect of each Mortgage Loan (but not a B Note) and (ii) from
any A/B Loan Custodial Account, the Special Servicer Compensation to the
extent related solely to the related B Note, in the time and manner set forth
in Section 5.2 of this Agreement. The Special Servicer shall be required to
pay all expenses incurred by it in connection with its servicing activities
hereunder and shall not be entitled to reimbursement therefor except as
expressly provided in this Agreement.
(c) Additional Special Servicer Compensation in the form of
net interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees,
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forbearance fees, Late Fees and default interest (net of amounts used to pay
Advance Interest) or other usual and customary charges and fees actually
received from the Mortgagor in connection with any Specially Serviced Mortgage
Loan shall be retained by the Special Servicer, to the extent not required to
be deposited in the Certificate Account pursuant to the terms of this
Agreement (other than any such fees payable in connection with the Pari Passu
Loan). The Special Servicer shall also be permitted to receive 50% of all
assumption fees collected with respect to Mortgage Loans that are not
Specially Serviced Mortgage Loans as provided in Section 8.7(a) and 100% of
all assumption fees collected with respect to Mortgage Loans that are
Specially Serviced Mortgage Loans as provided in Section 9.5(a) (other than
any such fees payable in connection with the Pari Passu Loan). To the extent
any component of Special Servicer Compensation is in respect of amounts
usually and customarily paid by Mortgagors, the Special Servicer shall use
reasonable good faith efforts to collect such amounts from the related
Mortgagor, and to the extent so collected, in full or in part, the Special
Servicer shall not be entitled to compensation for the portion so collected
therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing
Standard and subject to Section 9.4(a) and Section 9.36, shall use its
reasonable efforts to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Specially
Serviced Mortgage Loans as come into and continue in default and as to which
no satisfactory arrangements can be made for collection of delinquent payments
of such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of
ownership, the Special Servicer shall follow the Servicing Standard. The
foregoing is subject to the proviso that the Special Servicer shall not
request that the Master Servicer make a Servicing Advance for Liquidation
Expenses unless the Special Servicer shall determine, consistent with the
Servicing Standard, (i) that such foreclosure will increase on a net present
value basis the Liquidation Proceeds of the Specially Serviced Mortgage Loan
to the Trust (and the holder of the related B Note if in connection with an
A/B Mortgage Loan, taken as a collective whole) and (ii) that such Liquidation
Expenses will be recoverable from Liquidation Proceeds, and any such Servicing
Advance by the Master Servicer or the Trustee or the Fiscal Agent shall be
subject to the determination(s) of recoverability contemplated by Section 4.4.
(b) The Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto
unless either:
(i) such personal property is incidental to real
property (within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the
Trust) to the effect that the holding of such personal property by any REMIC
will not cause the imposition of a tax on any REMIC Pool under the Code or
cause any REMIC Pool to fail to qualify as a REMIC.
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(c) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, and shall not otherwise acquire possession of, or take any other
action with respect to, any Mortgaged Property, if, as a result of any such
action the Trust would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA, or any applicable comparable
federal, state or local law, or a "discharger" or "responsible party"
thereunder, unless the Special Servicer has also previously determined in
accordance with the Servicing Standard, based on a Phase I Environmental
Report prepared by a Person (who may be an employee or affiliate of the Master
Servicer or the Special Servicer) who regularly conducts environmental site
assessments in accordance with the standards of FNMA in the case of
multi-family mortgage loans and customary servicing practices in the case of
commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring the
Mortgaged Property in compliance with applicable Environmental Laws is
reasonably likely to produce a greater recovery on a net present value basis
than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present
or threatened at such Mortgaged Property relating to the use, management,
disposal or release of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation,
testing, monitoring, removal, clean-up or remediation could be required under
any federal, state or local law or regulation, or that, if any such materials
are present for which such action could be required, after consultation with
an environmental expert taking such actions with respect to the affected
Mortgaged Property is reasonably likely to produce a greater recovery on a net
present value basis than not taking such actions (after taking into account
the projected costs of such actions); provided, however, that such compliance
pursuant to clause (i) and (ii) above or the taking of such action pursuant to
this clause (iii) shall only be required to the extent that the cost thereof
is a Servicing Advance of the Master Servicer pursuant to this Agreement,
subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report contemplated
by Section 9.12(c) may be treated as a Liquidation Expense, or in the event
the related Specially Serviced Mortgage Loan is not liquidated and a Final
Recovery Determination has been made with respect to such Specially Serviced
Mortgage Loan, the Master Servicer shall treat such cost as a Servicing
Advance subject to the provisions of Section 4.4 hereof; provided that, in the
latter event, the Special Servicer shall use its good faith reasonable
business efforts to recover such cost from the Mortgagor in connection with
the curing of the default under the Specially Serviced Mortgage Loan.
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(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or
petroleum-based materials affecting any such Mortgaged Property, is not
reasonably likely to produce a greater recovery on a net present value basis
than not taking such actions (after taking into account the projected costs of
such actions) or than not pursuing a claim under the Environmental Insurance
Policy, then the Special Servicer shall take such action as it deems to be in
the best economic interest of the Trust (and the holder of the related B Note
if in connection with an A/B Mortgage Loan, taken as a collective whole),
including, without limitation, releasing the lien of the related Mortgage. If
the Special Servicer determines that a material possibility exists that
Liquidation Expenses with respect to Mortgaged Property (taking into account
the cost of bringing it into compliance with applicable Environmental Laws)
would exceed the Principal Balance of the related Mortgage Loan, the Special
Servicer shall not attempt to bring such Mortgaged Property into compliance
and shall not acquire title to such Mortgaged Property unless it has received
the written consent of the Trustee to such action.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including,
without limitation, any action to obtain a deficiency judgment with respect to
any Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust obtains,
through foreclosure on a Mortgage or otherwise, the right to receive title to
a Mortgaged Property, the Special Servicer, as its agent, shall direct the
appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine when
an Acquisition Date shall be deemed to occur under the REMIC Provisions with
respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage
Loan), shall sell the REO Property expeditiously, but in any event within the
time period, and subject to the conditions, set forth in Section 9.15. Subject
to Section 9.15, the Special Servicer shall manage, conserve, protect and
operate the REO Property for the holders of beneficial interests in the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage
Loan) solely for the purpose of its prompt disposition and sale.
SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish
and maintain with respect to each REO Property one or more accounts held in
trust for the benefit of the Certificateholders (and the holder of the related
B Note if in connection with an A/B Mortgage Loan) in the name of "LaSalle
Bank National Association, as Trustee for the Holders of Bear Xxxxxxx
Commercial Mortgage Securities Inc. Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through
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Certificates Series 2001-TOP4 and the holder of any B Note as their interests
may appear [name of Property Account]" (each, an "REO Account"), which shall
be an Eligible Account. Amounts in any REO Account shall be invested in
Eligible Investments. The Special Servicer shall deposit all funds received
with respect to an REO Property in the applicable REO Account within two days
of receipt. The Special Servicer shall account separately for funds received
or expended with respect to each REO Property. All funds in each REO Account
may be invested only in Eligible Investments. The Special Servicer shall
notify the Trustee and the Master Servicer in writing of the location and
account number of each REO Account and shall notify the Trustee prior to any
subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the
Collection Period immediately preceding such Special Servicer Remittance Date
on or with respect to the related REO Properties and reinvestment income
thereon; provided, however, that (i) the Special Servicer may retain in such
REO Account such portion of such proceeds and collections as may be necessary
to maintain in the REO Account sufficient funds for the proper operation,
management and maintenance of the related REO Property, including, without
limitation, the creation of reasonable reserves for repairs, replacements, and
necessary capital improvements and other related expenses. The Special
Servicer shall notify the Master Servicer of all such deposits (and the REO
Properties to which the deposits relate) made into the Certificate Account and
(ii) the Special Servicer shall be entitled to withdraw from the REO Account
and pay itself as additional Special Servicing Compensation any interest or
net reinvestment income earned on funds deposited in the REO Account. The
amount of any losses incurred in respect of any such investments shall be for
the account of the Special Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the REO
Account, out of its own funds immediately as realized. If the Special Servicer
deposits in any REO Account any amount not required to be deposited therein,
it may at any time withdraw such amount from the REO Account, any provision
herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the Special
Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and prohibitions
of this Agreement and any applicable consultation rights of the holder of the
related B Note relating to an A/B Mortgage Loan, to do any and all things in
connection therewith as are consistent with the Servicing Standard, subject to
the REMIC Provisions, and in such manner as the Special Servicer deems to be
in the best interest of the Trust, and, consistent therewith, may advance from
its own funds to pay for the following items (which amounts shall be
reimbursed by the Master Servicer or the Trust subject to Sections 4.4 in
accordance with Section 4.6(e)), to the extent such amounts cannot be paid
from REO Income:
(i) all insurance premiums due and payable in respect of
such REO Property;
(ii) all real estate taxes and assessments in respect of
such REO Property that could result or have resulted in the imposition of a
lien thereon; and
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(iii) all costs and expenses necessary to maintain,
operate, lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary to
(i) preserve the status of the REO Property as "foreclosure property" under
the REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall
contract with any Independent Contractor for the operation and management of
the REO Property, provided that:
(i) the terms and conditions of any such contract shall
not be inconsistent herewith;
(ii) the terms of such contract shall be consistent with
the provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above, any
such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the
REO Property and (B) deposit on a daily basis all amounts payable to the Trust
in accordance with the contract between the Trust and the Independent
Contractor in an Eligible Account;
(iv) none of the provisions of this Section 9.14
relating to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its
duties and obligations to the Trustee with respect to the operation and
management of any such REO Property;
(v) if the Independent Contractor is an Affiliate of
the Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
(and, if applicable, the holder of a B Note) pursuant to this subsection (d)
for indemnification of the Special Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. All fees of the Independent Contractor (other than fees paid
for performing services within the ordinary duties of a Special Servicer which
shall be paid by the Special Servicer) shall be paid from the income derived
from the REO Property. To the extent that the income from the REO Property is
insufficient, such fees shall be advanced by the Master Servicer as a
Servicing Advance, subject to the provisions of Section 4.4 and Section 4.6(e)
hereof.
(e) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not rent, lease, or otherwise earn income on behalf of
the Trust or the beneficial
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owners thereof with respect to REO Property which might cause the REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code (without giving effect to the final sentence thereof)
or result in the receipt by any REMIC of any "income from nonpermitted assets"
within the meaning of Section 860F(a)(2) of the Code or any "net income from
foreclosure property" which is subject to tax under the REMIC Provisions
unless (i) the Trustee and the Special Servicer have received an Opinion of
Counsel (at the Trust's sole expense) to the effect that, under the REMIC
Provisions and any relevant proposed legislation, any income generated for
REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special
Servicer determines the income or earnings with respect to such REO Property
will offset any tax under the REMIC Provisions relating to such income or
earnings and will maximize the net recovery from the REO Property to the
Certificateholders. The Special Servicer shall notify the Trustee, the Paying
Agent and the Master Servicer of any election by it to incur such tax, and the
Special Servicer (i) shall hold in escrow in an Eligible Account an amount
equal to the tax payable thereby from revenues collected from the related REO
Property, (ii) provide the Paying Agent with all information for the Paying
Agent to file the necessary tax returns in connection therewith and (iii) upon
request from the Paying Agent, pay from such account to the Paying Agent the
amount of the applicable tax. The Paying Agent shall file the applicable tax
returns based on the information supplied by the Special Servicer and pay the
applicable tax from the amounts collected by the Special Servicer.
Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend any
New Lease with respect to the REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under
any New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement
thereon, and then only if more than ten percent of the construction of such
building or other improvement was completed before default on the Mortgage
Loan became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, other than through an Independent
Contractor, or allow any other Person to Directly Operate, other than through
an Independent Contractor, the REO Property on any date more than 90 days
after the Acquisition Date; unless, in any such case, the Special Servicer has
requested and received an Opinion of Counsel at the Trust's sole expense to
the effect that such action will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (without giving effect to the final sentence thereof) at any time
that it is held by the applicable REMIC Pool, in which case the Special
Servicer may take such actions as are specified in such Opinion of Counsel.
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SECTION 9.15 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired by
the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall
use its reasonable best efforts to sell any REO Property as soon as
practicable consistent with the objective of maximizing proceeds for all
Certificateholders, but in no event later than the end of the third calendar
year following the end of the year of its acquisition, and in any event prior
to the later Rated Final Distribution Date, unless (i) the Trustee, on behalf
of the applicable REMIC Pool, has been granted an extension of time (an
"Extension") (which extension shall be applied for at least 60 days prior to
the expiration of the period specified above) by the Internal Revenue Service
to sell such REO Property (a copy of which shall be delivered to the Paying
Agent upon request), in which case the Special Servicer shall continue to
attempt to sell the REO Property for its fair market value for such period
longer than the period specified above as such Extension permits or (ii) the
Special Servicer seeks and subsequently receives, at the expense of the Trust,
a Nondisqualification Opinion, addressed to the Trustee and the Special
Servicer, to the effect that the holding by the Trust of such REO Property
subsequent to the period specified above after its acquisition will not result
in the imposition of taxes on "prohibited transactions" of a REMIC, as defined
in Section 860F(a)(2) of the Code, or cause any REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding. If the Trustee has
not received an Extension or such Opinion of Counsel and the Special Servicer
is not able to sell such REO Property within the period specified above, or if
an Extension has been granted and the Special Servicer is unable to sell such
REO Property within the extended time period, the Special Servicer shall,
after consultation with the Operating Adviser, before the end of such period
or extended period, as the case may be, auction the REO Property to the
highest bidder (which may be the Special Servicer) in accordance with the
Servicing Standard; provided, however, that no Interested Person shall be
permitted to purchase the REO Property at a price less than the Purchase
Price; and provided, further that if the Special Servicer intends to bid on
any REO Property, (i) the Special Servicer shall notify the Trustee of such
intent, (ii) the Trustee shall promptly obtain, at the expense of the Trust an
Appraisal of such REO Property (or internal valuation in accordance with the
procedures specified in Section 6.9) and (iii) the Special Servicer shall not
bid less than the fair market value set forth in such Appraisal. Neither any
Seller nor the Depositor may purchase REO Property at a price in excess of the
fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the
Special Servicer shall provide to the Trustee, the Paying Agent and the Master
Servicer (and the holder of the related B Note, if any, if in connection with
an A/B Mortgage Loan) a statement of accounting for such REO Property,
including without limitation, (i) the Acquisition Date for the REO Property,
(ii) the date of disposition of the REO Property, (iii) the sale price and
related selling and other expenses, (iv) accrued interest (including interest
deemed to have accrued) on the Specially Serviced Mortgage Loan to which the
REO Property related, calculated from the Acquisition Date to the disposition
date, (v) final property operating statements, and (vi) such other information
as the Trustee or the Paying Agent (and the holder of the related B Note if in
connection with an A/B Mortgage Loan) may reasonably request in writing.
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(c) The Liquidation Proceeds from the final disposition of the
REO Property shall be deposited in the Certificate Account within one Business
Day of receipt.
(d) The Special Servicer shall provide the necessary
information to the Master Servicer and the Paying Agent to allow the Master
Servicer to prepare, deliver and file reports of foreclosure and abandonment
in accordance with Section 6050J and Section 6050P, if required, of the Code
with respect to such REO Property and shall deliver such information with
respect thereto as the Master Servicer or the Paying Agent may request in
writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In connection
with the enforcement of the rights of the Trust to any property securing any
Specially Serviced Mortgage Loan other than the related Mortgaged Property,
the Special Servicer shall consult with counsel to determine how best to
enforce such rights in a manner consistent with the REMIC Provisions and shall
not, based on a Nondisqualification Opinion addressed to the Special Servicer
and the Trustee (the cost of which shall be an expense of the Trust) take any
action that could result in the failure of any REMIC Pool to qualify as a
REMIC while any Certificates are outstanding, unless such action has been
approved by a vote of 100% of each Class of Certificateholders (including the
Class R-I, Class R-II and Class R-III Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Special Servicer shall deliver to the Paying Agent on or before noon
(Eastern Time) on March 31 of each calendar year (or March 30 if a leap year),
commencing in March 2002, an Officer's Certificate stating, as to the signer
thereof, that (A) a review of the activities of the Special Servicer during
the preceding calendar year or portion thereof and of the performance of the
Special Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Special Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof. The Special
Servicer shall deliver such Officer's Certificate to the Master Servicer, the
Depositor and the Trustee by April 7 of each calendar year. The Special
Servicer shall forward a copy of each such statement to the Rating Agencies.
SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING REPORT.
On or before noon (Eastern Time) on March 31 of each calendar year (or March
30 if a leap year), beginning with March 2002, the Special Servicer at its
expense shall cause a nationally recognized firm of Independent public
accountants (who may also render other services to the Special Servicer, as
applicable) to furnish to the Paying Agent (in electronic format) a statement
to the effect that (a) such firm has examined certain documents and records
relating to the servicing of the Mortgage Loans under this Agreement or the
servicing of mortgage loans similar to the Mortgage Loans under substantially
similar agreements for the preceding calendar year and (b) the assertion by
management of the Special Servicer, that it maintained an effective internal
control system over the servicing of such mortgage loans is fairly stated in
all material respects, based upon established criteria, which statement meets
the standards applicable to accountant's reports intended for general
distribution; provided that each of the Master Servicer and the Special
Servicer shall not be required to cause the delivery of such statement until
April
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15 in any given year so long as it has received written confirmation from the
Depositor that a Report on Form 10-K is not required to be filed in respect of
the Trust Fund for the preceding calendar year. The Special Servicer shall
deliver such statement to the Depositor, each Rating Agency, the Trustee and,
upon request, the Operating Adviser by April 7 of each calendar year (or by
April 30 of each calendar year if the statement is not required to be
delivered until April 15).
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which the
Special Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Special Servicer shall be a party, or any Person succeeding to the business of
the Special Servicer, shall be the successor of the Special Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto; provided, however, that each of the
Rating Agencies provides a Rating Agency Confirmation. If the conditions to
the proviso in the foregoing sentence are not met, the Trustee may terminate
the Special Servicer's servicing of the Specially Serviced Mortgage Loans
pursuant hereto, such termination to be effected in the manner set forth in
Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the
Special Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Special Servicer's duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by
it. Any such determination permitting the resignation of the Special Servicer
shall be evidenced by an Opinion of Counsel to such effect delivered to the
Master Servicer, the Operating Adviser, and the Trustee. No such resignation
shall become effective until a successor servicer designated by the Operating
Adviser and the Trustee shall have (i) satisfied the requirements that would
apply pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency Confirmation shall have been
obtained. Notice of such resignation shall be given promptly by the Special
Servicer to the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations and
duties hereby imposed on it, upon reasonable notice to the Trustee, provided
that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms
and conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least
$15,000,000 and (iii) Rating Agency Confirmation is obtained with respect to
such resignation, as evidenced by a letter from each Rating Agency delivered
to the Trustee. Any costs of such resignation and of obtaining a replacement
Special Servicer shall be borne by the Special Servicer and shall not be an
expense of the Trust.
(c) No such resignation under paragraph (b) above shall become
effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
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(d) Upon any resignation of the Special Servicer, it shall
retain the right to receive any and all Work-Out Fees payable in respect of
Mortgage Loans and any B Note that became Rehabilitated Mortgage Loans during
the period that it acted as Special Servicer and that were still Rehabilitated
Mortgage Loans at the time of such resignation (and the successor Special
Servicer shall not be entitled to any portion of such Work-Out Fees), in each
case until such time (if any) as such Mortgage Loan or B Note again becomes a
Specially Serviced Mortgage Loan or are no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. The Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder
or (B) assign and delegate all of its duties hereunder. In the case of any
such assignment and delegation in accordance with the requirements of clause
(A) of this Section, the Special Servicer shall not be released from its
obligations under this Agreement. In the case of any such assignment and
delegation in accordance with the requirements of clause (B) of this Section,
the Special Servicer shall be released from its obligations under this
Agreement, except that the Special Servicer shall remain liable for all
liabilities and obligations incurred by it as the Special Servicer hereunder
prior to the satisfaction of the following conditions: (i) the Special
Servicer gives the Depositor, the Master Servicer, the Primary Servicers and
the Trustee notice of such assignment and delegation; (ii) such purchaser or
transferee accepting such assignment and delegation executes and delivers to
the Depositor and the Trustee an agreement accepting such assignment, which
contains an assumption by such Person of the rights, powers, duties,
responsibilities, obligations and liabilities of the Special Servicer, with
like effect as if originally named as a party to this Agreement; (iii) the
purchaser or transferee has assets in excess of $15,000,000; (iv) such
assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, the Special Servicer may
appoint Sub-Servicers in accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS.
(a) Neither the Special Servicer nor any of the directors,
officers, employees or agents of the Special Servicer shall be under any
liability to the Certificateholders, the holder of any B Note or the Trustee
for any action taken or for refraining from the taking of any action in good
faith and using reasonable business judgment; provided that this provision
shall not protect the Special Servicer or any such person against any breach
of a representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in its performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder. The Special Servicer and any director,
officer, employee or agent of the Special Servicer may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person (including, without limitation, the information and reports delivered
by or at the direction of the Master Servicer or any director, officer,
employee or agent of the Master Servicer) respecting any matters arising
hereunder. The Special Servicer shall not be under any obligation to appear
in,
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prosecute or defend any legal action which is not incidental to its duties to
service the Specially Serviced Mortgage Loans in accordance with this
Agreement; provided that the Special Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable
in order to protect the interests of the Certificateholders, the holder of any
B Note and the Trustee in the Specially Serviced Mortgage Loans, or shall
undertake any such action if instructed to do so by the Trustee. In such
event, all legal expenses and costs of such action (other than those that are
connected with the routine performance by the Special Servicer of its duties
hereunder) shall be expenses and costs of the Trust, and the Special Servicer
shall be entitled to be reimbursed therefor as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
relieved from liability to, or entitled to indemnification from, the Trust for
any action taken by it at the direction of the Operating Adviser which is in
conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no liability
with respect to, and shall be entitled to conclusively rely on as to the truth
of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Special Servicer and conforming to
the requirements of this Agreement. Neither the Special Servicer, nor any
director, officer, employee, agent or Affiliate, shall be personally liable
for any error of judgment made in good faith by any officer, unless it shall
be proved that the Special Servicer or such officer was negligent in
ascertaining the pertinent facts. Neither the Special Servicer, nor any
director, officer, employee, agent or Affiliate, shall be personally liable
for any action taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion, rights or powers conferred upon
it by this Agreement. The Special Servicer shall be entitled to rely on
reports and information supplied to it by the Master Servicer and the related
Mortgagors and shall have no duty to investigate or confirm the accuracy of
any such report or information.
(c) The Special Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or Trustee in this Agreement.
The Trust shall indemnify and hold harmless the Special Servicer from any and
all claims, liabilities, costs, charges, fees or other expenses which relate
to or arise from any such breach of representation, warranty or covenant to
the extent such amounts are not recoverable from the party committing such
breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be
protected in acting or refraining from acting upon, any resolution, officer's
certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or other paper or document believed or in good faith believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel, and
any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
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(iii) the Special Servicer shall not be personally
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement; and
(iv) the Special Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from
acting upon any information (financial or other), statement, certificate,
document, agreement, covenant, notice, request or other paper reasonably
believed or in good faith believed by it to be genuine.
(e) The Special Servicer and any director, officer, employee
or agent of the Special Servicer shall be indemnified by the Master Servicer,
the Trustee, the Paying Agent and the Fiscal Agent, as the case may be, and
held harmless against any loss, liability or expense including reasonable
attorneys' fees incurred in connection with any legal action relating to the
Master Servicer's, the Trustee's, the Paying Agent's or the Fiscal Agent's, as
the case may be, respective willful misfeasance, bad faith or negligence in
the performance of its respective duties hereunder or by reason of negligent
disregard by such Person of its respective duties hereunder, other than any
loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of any of the Special Servicer's duties
hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify
the Master Servicer, the Trustee, the Paying Agent and the Fiscal Agent if a
claim is made by a third party entitling the Special Servicer to
indemnification hereunder, whereupon the Master Servicer, the Trustee or the
Paying Agent, in each case, to the extent the claim was made in connection
with its willful misfeasance, bad faith or negligence, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Special
Servicer). Any failure to so notify the Master Servicer, the Trustee or the
Paying Agent shall not affect any rights the Special Servicer may have to
indemnification hereunder or otherwise, unless the interest of the Master
Servicer, the Trustee or the Paying Agent is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation
or removal of the Special Servicer hereunder. Any payment hereunder made by
the Master Servicer, the Trustee, the Fiscal Agent or the Paying Agent, as the
case may be, pursuant to this paragraph to the Special Servicer shall be paid
from the Master Servicer's, the Trustee's, Fiscal Agent's or the Paying
Agent's, as the case may be, own funds, without reimbursement from the Trust
therefor, except achieved through subrogation as provided in this Agreement.
Any expenses incurred or indemnification payments made by the Trustee, the
Paying Agent, the Fiscal Agent or the Master Servicer shall be reimbursed by
the party so paid, if a court of competent jurisdiction makes a final judgment
that the conduct of the Trustee, the Paying Agent, the Fiscal Agent or the
Master Servicer, as the case may be, was not culpable or found to not have
acted with willful misfeasance, bad faith or negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer, employee
or agent of the Special Servicer shall be indemnified by the Trust, and held
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to (i) this
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Agreement, and (ii) any action taken by the Special Servicer in accordance
with the instruction delivered in writing to the Special Servicer by the
Trustee or the Master Servicer pursuant to any provision of this Agreement in
each case and the Special Servicer and each of its directors, officers,
employees and agents shall be entitled to indemnification from the Trust for
any loss, liability or expense (including attorneys' fees) incurred in
connection with the provision by the Special Servicer of any information
included by the Special Servicer in the report required to be provided by the
Special Servicer pursuant to this Agreement, other than any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or negligence in
the performance of duties hereunder or by reason of negligent disregard of
obligations and duties hereunder. The Special Servicer shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Special
Servicer) and the Trust shall pay, from amounts on deposit in the Certificate
Account pursuant to Section 5.2, all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment
or decree which may be entered against it or them in respect of such claim.
The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer. Any
expenses incurred or indemnification payments made by the Trust shall be
reimbursed by the Special Servicer, if a court of competent jurisdiction makes
a final, non-appealable judgment that the Special Servicer was found to have
acted with willful misfeasance, bad faith or negligence.
(b) The Special Servicer agrees to indemnify the Trust, and
the Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Paying
Agent and any director, officer, employee or agent or Controlling Person of
the Trustee, the Fiscal Agent, the Depositor and the Master Servicer, and hold
them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trust or the Trustee, the Fiscal
Agent, the Depositor, the Paying Agent or the Master Servicer may sustain
arising from or as a result of the willful misfeasance, bad faith or
negligence in the performance of duties hereunder or by reason of negligent
disregard of obligations and duties hereunder by the Special Servicer. The
Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master
Servicer shall immediately notify the Special Servicer if a claim is made by a
third party with respect to this Agreement or the Specially Serviced Mortgage
Loans entitling the Trust or the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicer, as the case may be, to indemnification
hereunder, whereupon the Special Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent,
the Depositor, the Paying Agent or the Master Servicer, as the case may be)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so notify
the Special Servicer shall not affect any rights the Trust or the Trustee, the
Fiscal Agent, the Depositor, the Paying Agent or the Master Servicer may have
to indemnification under this Agreement or otherwise, unless the Special
Servicer's defense of such claim is materially prejudiced thereby. The
indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer, the
Paying Agent or the Trustee or Fiscal Agent. Any expenses incurred or
indemnification payments made by the Special Servicer shall be reimbursed by
the party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of the Special Servicer was not
culpable or found to have acted with willful misfeasance, bad faith or
negligence.
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(c) The initial Special Servicer and the Depositor expressly
agree that the only information furnished by or on behalf of the Special
Servicer for inclusion in the Preliminary Prospectus Supplement and the Final
Prospectus Supplement is the information set forth in the paragraph under the
caption "SERVICING OF THE MORTGAGE LOANS - The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
(d) The 2001-TOP3 Special Servicer and any director, officer,
employee or agent of the 2001-TOP3 Special Servicer shall be indemnified by
the Trust and held harmless against the Trust's pro rata share of any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to the 2001-TOP3 Pooling and
Servicing Agreement and this Agreement, and relating to the Pari Passu Loan
(but excluding any such losses allocable to the 2001-TOP3 Mortgage Loan),
reasonably requiring the use of counsel or the incurring of expenses other
than any losses incurred by reason of the 2001-TOP3 Special Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties under
the 2001-TOP3 Pooling and Servicing Agreement.
SECTION 9.25 RESERVED
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The Special
Servicer or any agent of the Special Servicer in its individual capacity or in
any other capacity may become the owner or pledgee of Certificates with the
same rights as it would have if they were not the Special Servicer or such
agent. Any such interest of the Special Servicer or such agent in the
Certificates shall not be taken into account when evaluating whether actions
of the Special Servicer are consistent with its obligations in accordance with
the Servicing Standard regardless of whether such actions may have the effect
of benefiting the Class or Classes of Certificates owned by the Special
Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall provide
the necessary information to the Master Servicer to allow the Master Servicer
to comply with the Mortgagor tax reporting requirements imposed by Sections
6050H, 6050J and 6050P of the Code with respect to any Specially Serviced
Mortgage Loan. The Special Servicer shall provide to the Master Servicer
copies of any such reports. The Master Servicer shall forward such reports to
the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Master Servicer will be collecting all payments with respect to the
Mortgage Loans (other than payments with respect to REO Income). If, however,
the Special Servicer should receive any payments with respect to any Mortgage
Loan (other than REO Income) it shall, within one Business Day of receipt from
the Mortgagor or otherwise of any amounts attributable to payments with
respect to or the sale of any Mortgage Loan or any Specially Serviced Mortgage
Loan, if any, (but not including REO Income, which shall be deposited in the
applicable REO Account as provided in Section 9.14 hereof), either, (i)
forward such payment (endorsed, if applicable, to the order of the Master
Servicer), to the Master Servicer, or (ii) deposit such amounts, or cause such
amounts to be deposited, in the Certificate Account. The Special Servicer
shall notify the Master Servicer of each such amount received on or before the
date required for the making of such deposit or
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transfer, as the case may be, indicating the Mortgage Loan or Specially
Serviced Mortgage Loan to which the amount is to be applied and the type of
payment made by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
Pool to take any action that would (i) endanger the status of any REMIC as a
REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the
tax on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Master
Servicer and the Trustee have received a Nondisqualification Opinion (at the
expense of the party seeking to take such action) to the effect that the
contemplated action will not endanger such status or result in the imposition
of such tax. The Special Servicer shall comply with the provisions of Article
XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer to
make payments to the Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days
following the date on which the Trustee or the Operating Adviser has given
written notice to the Special Servicer that this Agreement is terminated
pursuant to Section 9.30(b) or 9.30(c), respectively, and (iii) the effective
date of any resignation of the Special Servicer effected pursuant to and in
accordance with Section 9.21.
(b) The Trustee may terminate the Special Servicer in the
event that (i) the Special Servicer has failed to remit any amount required to
be remitted to the Trustee, the Master Servicer, the Fiscal Agent, the Paying
Agent or the Depositor within one (1) Business Day following the date such
amount was required to have been remitted under the terms of this Agreement,
(ii) the Special Servicer has failed to deposit into any account any amount
required to be so deposited or remitted under the terms of this Agreement
which failure continues unremedied for one Business Day following the date on
which such deposit or remittance was first required to be made; (iii) the
Special Servicer has failed to duly observe or perform in any material respect
any of the other covenants or agreements of the Special Servicer set forth in
this Agreement, and the Special Servicer has failed to remedy such failure
within thirty (30) days after written notice of such failure, requiring the
same to be remedied, shall have been given to the Special Servicer by the
Depositor or the Trustee, provided, however, that if the Special Servicer
certifies to the Trustee and the Depositor that the Special Servicer is in
good faith attempting to remedy such failure, and the Certificateholders would
not be affected thereby, such cure period will be extended to the extent
necessary to permit the Special Servicer to cure such failure; provided,
however, that such cure period may not exceed 90 days; (iv) the Special
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Servicer has made one or more false or misleading representations or
warranties herein that materially and adversely affects the interest of any
Class of Certificates, and has failed to cure such breach within thirty (30)
days after notice of such breach, requiring the same to be remedied, shall
have been given to the Special Servicer by the Depositor or the Trustee,
provided, however, that if the Special Servicer certifies to the Trustee and
the Depositor that the Special Servicer is in good faith attempting to remedy
such failure, such cure period may be extended to the extent necessary to
permit the Special Servicer to cure such failure; provided, however, that such
cure period may not exceed 90 days; (v) the Special Servicer is removed from
S&P's approved special servicer list and the ratings then assigned by S&P to
any Classes of Certificates are downgraded, qualified or withdrawn (including,
without limitation, being placed on "negative credit watch") in connection
with such removal; (vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Special
Servicer and such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; (vii) the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings relating to the Special Servicer
or of or relating to all or substantially all of its property; or (viii) the
Special Servicer thereof shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the foregoing;
or (ix) the Special Servicer receives actual knowledge that Xxxxx'x has (A)
qualified, downgraded or withdrawn its rating or ratings of one or more
Classes of Certificates, or (B) placed one or more Classes of Certificates on
"watch status" in contemplation of a rating downgrade or withdrawal (and such
"watch status" placement shall not have been withdrawn by Xxxxx'x within 60
days of the date that the Special Servicer obtained such actual knowledge)
and, in the case of either of clauses (A) or (B), citing servicing concerns
with the Special Servicer as the sole or material factor in such rating
action. Such termination shall be effective on the date after the date of any
of the above events that the Trustee specifies in a written notice to the
Special Servicer specifying the reason for such termination. The Operating
Adviser shall have the right to appoint a successor if the Trustee terminates
the Special Servicer.
(c) The Operating Adviser shall have the right to direct the
Trustee to terminate the Special Servicer, provided that the Operating Adviser
shall appoint a successor Special Servicer who will (i) be reasonably
satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, whereby the successor Special Servicer agrees to assume and
perform punctually the duties of the Special Servicer specified in this
Agreement; and provided, further, that the Trustee shall have received Rating
Agency Confirmation from each Rating Agency prior to the termination of the
Special Servicer. The Special Servicer shall not be terminated pursuant to
this subsection (c) until a successor Special Servicer shall have been
appointed. The Operating Adviser shall pay any costs and expenses incurred by
the Trust in connection with the
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removal and appointment of a Special Servicer (unless such removal is based on
any of the events or circumstances set forth in Section 9.30(b)).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 9.30(a), specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Special Servicer to
the Trustee and the Paying Agent no later than the later of (i) five Business
Days after the final payment or other liquidation of the last Mortgage Loan or
(ii) the sixth day of the month in which the final Distribution Date will
occur. Upon any such termination, the rights and duties of the Special
Servicer (other than the rights and duties of the Special Servicer pursuant to
Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate and the Special
Servicer shall transfer to the Master Servicer the amounts remaining in each
REO Account and shall thereafter terminate each REO Account and any other
account or fund maintained with respect to the Specially Serviced Mortgage
Loans.
(b) On the date specified in a written notice of termination
given to the Special Servicer pursuant to clause (ii) of Section 9.30(a), all
authority, power and rights of the Special Servicer under this Agreement,
whether with respect to the Specially Serviced Mortgage Loans or otherwise,
shall terminate; provided, that in no event shall the termination of the
Special Servicer be effective until the Trustee or other successor Special
Servicer shall have succeeded the Special Servicer as successor Special
Servicer, notified the Special Servicer of such designation, and such
successor Special Servicer shall have assumed the Special Servicer's
obligations and responsibilities, as set forth in an agreement substantially
in the form hereof, with respect to the Specially Serviced Mortgage Loans. The
Trustee or other successor Special Servicer may not succeed the Special
Servicer as Special Servicer until and unless it has satisfied the provisions
that would apply to a Person succeeding to the business of the Special
Servicer pursuant to Section 9.20 hereof. The Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Special Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate to
effect the purposes of such notice of termination. The Special Servicer agrees
to cooperate with the Trustee and the Fiscal Agent in effecting the
termination of the Special Servicer's responsibilities and rights hereunder as
Special Servicer including, without limitation, providing the Trustee all
documents and records in electronic or other form reasonably requested by it
to enable the successor Special Servicer designated by the Trustee to assume
the Special Servicer's functions hereunder and to effect the transfer to such
successor for administration by it of all amounts which shall at the time be
or should have been deposited by the Special Servicer in any REO Account and
any other account or fund maintained or thereafter received with respect to
the Specially Serviced Mortgage Loans.
(c) If the Special Servicer receives a written notice of
termination pursuant to clause (ii) of Section 9.30(a) relating solely to an
event set forth in Section 9.30(b)(v) or (ix), and if the Special Servicer
provides the Trustee with the appropriate "request for proposal" materials
within five Business Days after receipt of such written notice of termination,
then the Trustee shall promptly thereafter (using such "request for proposal"
materials provided by the Special Servicer) solicit good faith bids for the
rights to be appointed as Special Servicer under this Agreement from at least
three but no more than five Qualified Bidders or, if three Qualified
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Bidders cannot be located, then from as many persons as the Trustee can
determine are Qualified Bidders. At the Trustee's request, the Special
Servicer shall supply the Trustee with the names of Persons from whom to
solicit such bids. In no event shall the Trustee be responsible if less than
three Qualified Bidders submit bids for the right to service the Mortgage
Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder, as
a condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with
the Controlling Class, provided that the successor Special Servicer so
appointed must be bound by the terms of this Agreement and there must be
delivered a Rating Agency Confirmation in connection with such appointment.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Special Servicer pursuant to the terms hereof not later than 30 days
after the termination of the Special Servicer hereunder, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account
specified by the Trustee no later than 10:00 a.m. New York City time on the
date specified for the assignment and assumption of the servicing rights
hereunder.
(e) Upon the assignment and acceptance of the servicing right
hereunder to and by the Successful Bidder and receipt of such cash bid, the
Trustee shall remit or cause to be remitted to the terminated Special Servicer
the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m.
New York City time on the date specified for the assignment and assumption of
the servicing rights hereunder.
(f) If the Successful Bidder has not entered into this
Agreement as successor Special within 30 days after the termination of the
Special Servicer hereunder or no Successful Bidder was identified within such
30-day period, the Trustee shall have no further obligations under Section
9.31(c) and may act or may select another successor to act as Special Servicer
hereunder in accordance with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced Mortgage
Loan, shall provide to the Master Servicer and the Paying Agent on or prior to
the Determination Date for each month, the CMSA Reports in such electronic
format as is mutually acceptable to the Master Servicer and the Special
Servicer and in CMSA format. The Master Servicer and the Paying Agent may use
such reports or information contained therein to prepare its reports and the
Master Servicer may, at its option, forward such reports directly to the
Depositor and the Rating Agencies.
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(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer's Certificate
delivered to the Trustee, the Operating Adviser, the Paying Agent and the
Master Servicer no later than the ten Business Day following such Final
Recovery Determination.
(c) The Special Servicer shall provide to the Master Servicer
or the Paying Agent at the reasonable request in writing of the Master
Servicer the Paying Agent, any information in its possession with respect to
the Specially Serviced Mortgage Loans which the Master Servicer or Paying
Agent, as the case may be, shall require in order for the Master Servicer or
the Paying Agent to comply with its obligations under this Agreement; provided
that the Special Servicer shall not be required to take any action or provide
any information that the Special Servicer determines will result in any
material cost or expense to which it is not entitled to reimbursement
hereunder or will result in any material liability for which it is not
indemnified hereunder. The Master Servicer will provide the Special Servicer
at the request of the Special Servicer any information in its possession with
respect to the Mortgage Loans which the Master Servicer shall require in order
for the Special Servicer to comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer
Remittance Date, the Special Servicer shall forward to the Master Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all
remittances required to be made by it as required by this Agreement to be made
by the Special Servicer have been made (or, if any required distribution has
not been made by the Special Servicer, specifying the nature and status
thereof) and showing, for the period from the day following the preceding
Special Servicer Remittance Date to such Special Servicer Remittance Date, the
aggregate of deposits into and withdrawals from each REO Account for each
category of deposit specified in Section 5.1 of this Agreement and each
category of withdrawal specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to
obtain and, to the extent obtained, to deliver to the Master Servicer, the
Paying Agent, the Rating Agencies and the Operating Adviser, on or before
April 15 of each year, commencing with April 15, 2002, (i) copies of the prior
year operating statements and quarterly statements, if available, for each
Mortgaged Property underlying a Specially Serviced Mortgage Loan or REO
Property as of its fiscal year end, provided that either the related Mortgage
Note or Mortgage requires the Mortgagor to provide such information, or if the
related Mortgage Loan has become an REO Property, (ii) a copy of the most
recent rent roll available for each Mortgaged Property, and (iii) a table,
setting forth the Debt Service Coverage Ratio and occupancy with respect to
each Mortgaged Property covered by the operating statements delivered above.
(f) The Special Servicer shall deliver to the Master Servicer,
the Depositor, the Paying Agent and the Trustee all such other information
with respect to the Specially Serviced Mortgage Loans at such times and to
such extent as the Master Servicer, the Trustee, the Paying Agent or Depositor
may from time to time reasonably request; provided, however, that the Special
Servicer shall not be required to produce any ad hoc non-standard written
reports
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with respect to such Mortgage Loans except if any Person (other than the
Paying Agent or the Trustee) requesting such report pays a reasonable fee to
be determined by the Special Servicer.
(g) The Special Servicer shall deliver a written Inspection
Report of each Specially Serviced Mortgage Loan in accordance with Section
9.4(b) to the Operating Adviser.
(h) The Special Servicer shall provide, as soon as practicable
after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to the
Master Servicer its estimate of the net recoverable amount to the
Certificateholders (and the holder of the B Note if in connection with an A/B
Mortgage Loan) and anticipated expenses in connection therewith (and a general
description of the plan to achieve such recovery) of such Specially Serviced
Mortgage Loan and other information reasonably requested by the Master
Servicer. The Special Servicer shall update such information on a quarterly
basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis such
reports, certifications, and information as are reasonably requested by the
Master Servicer, the Trustee or the Paying Agent to enable it to perform its
duties under this Agreement or the Primary Servicing Agreements, as
applicable; provided that no such request shall (i) require or cause the
Special Servicer to violate the Code, any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
servicing standards set forth in this Agreement and to maintain the REMIC
status of any REMIC Pool or (ii) expose the Special Servicer, the Trust, the
Fiscal Agent, the Paying Agent or the Trustee to liability or materially
expand the scope of the Special Servicer's responsibilities under this
Agreement. In addition, the Special Servicer shall notify the Master Servicer
of all expenditures incurred by it with respect to the Specially Serviced
Mortgage Loans which are required to be made by the Master Servicer as
Servicing Advances as provided herein, subject to the provisions of Section
4.4 hereof. The Special Servicer shall also remit all invoices relating to
Servicing Advances promptly upon receipt of such invoices.
(b) The Special Servicer shall from time to time make reports,
recommendations and analyses to the Operating Adviser with respect to the
following matters, the expense of which shall be charged to the Operating
Adviser, but in no event shall such costs be an expense of the Trust:
(i) whether the foreclosure of a Mortgaged Property
relating to a Specially Serviced Mortgage Loan would be in the best economic
interest of the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the
cost, time and exposure of pursuing such judgment;
(iii) whether the waiver or enforcement of any
"due-on-sale" clause or "due-on-encumbrance" clause contained in a Mortgage
Loan or a Specially Serviced Mortgage Loan is in the best economic interest of
the Trust;
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(iv) in connection with entering into an assumption
agreement from or with a person to whom a Mortgaged Property securing a
Specially Serviced Mortgage Loan has been or is about to be conveyed, or to
release the original Mortgagor from liability upon a Specially Serviced
Mortgage Loan and substitute a new Mortgagor, and whether the credit status of
the prospective new Mortgagor is in compliance with the Special Servicer's
regular commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a Specially
Serviced Mortgage Loan secured by a Mortgaged Property which is not in
compliance with CERCLA, or any comparable environmental law, whether it is in
the best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which
shall include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not
such action is reasonably likely to produce a greater recovery on a present
value basis than liquidation of such Mortgage Loan; such analysis shall
specify the basis on which the Special Servicer made such determination,
including the status of any existing material default or the grounds for
concluding that a payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS
(a) The holder of Certificates evidencing the greatest
percentage interest in the Controlling Class, the Special Servicer and each
Seller (other than (i) Xxxxx Fargo Bank, National Association and (ii) solely
with respect to the A Note, Bear, Xxxxxxx Funding, Inc.) as to those Mortgage
Loans sold to the Depositor by such Seller only (in such capacity, together
with any assignee, the "Option Holder") shall, in that order, have the right,
at its option (the "Option"), to purchase a Mortgage Loan from the Trust at a
price equal to the Option Purchase Price upon receipt of notice from the
Special Servicer that such Mortgage Loan has become at least 60 days
delinquent as to any monthly debt service payment (or is delinquent as to its
Balloon Payment); provided, however, that with respect to an A Note, the
Option Holder's rights under this Section 9.36 are subject to the rights of
the holder of the related B Note to purchase the A Note pursuant to the terms
of the Intercreditor Agreement. The Option is exercisable, subject to Section
2.3, from that date until terminated pursuant to clause (e) below, and during
that period the Option shall be exercisable in any month only during the
period from the 10th calendar day of such month through the 25th calendar day,
inclusive, of such month. The Trustee on behalf of the Trust shall be
obligated to sell such Mortgage Loan upon the exercise of the Option (whether
exercised by the original holder thereof or by a holder that acquired such
Option by assignment), but shall have no authority to sell such Mortgage Loan
other than in connection with the exercise of an Option (or in connection with
a repurchase of a Mortgage Loan under Article II, an optional termination
pursuant to Section 10.1 or a qualified liquidation of the REMIC) or if such
Mortgage Loan is an A Note, to the holder of the related B Note pursuant to
the terms of the Intercreditor Agreement. Any Option Holder that exercises the
Option shall be
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required to purchase the applicable Mortgage Loan on the 4th Business Day
after such exercise. If any Option Holder desires to waive its right to
exercise the Option, then it shall so notify the Trustee in writing, and the
Trustee shall promptly notify the next party eligible to hold the Option set
forth above of its rights hereunder. Any of the parties eligible to hold the
Option set forth above may at any time notify the Trustee in writing of its
desire to exercise the Option, and the Trustee shall promptly notify (i) the
current Option Holder (and the other parties eligible to hold the Option) and
(ii) solely with respect to an Option to purchase an A Note, the holder of the
related B Note, of such party's desire to exercise the Option; provided that
none of the Trustee, the Master Servicer or the Special Servicer shall
disclose the Option Purchase Price to the holder of such related B Note. If
the Option Holder neither (i) exercises the Option nor (ii) surrenders its
right to exercise the Option within 3 Business Days of its receipt of that
notice, then the Option Holder's right to exercise the Option shall lapse, and
the Trustee shall promptly notify the next party eligible to hold the Option
(and the other parties eligible to hold the Option) of its rights thereunder.
(b) The Option Purchase Price shall be an amount equal to the
fair value of the related Mortgage Loan, as determined by the Special
Servicer. Prior to the Special Servicer's determination of fair value referred
to above, the fair value of a Mortgage Loan shall be deemed to be an amount
equal to the Purchase Price plus (i) any prepayment penalty or yield
maintenance charge then payable upon the prepayment of such Mortgage Loan and
(ii) the reasonable fees and expenses of the Special Servicer, the Master
Servicer and the Trustee incurred in connection with the sale of the Mortgage
Loan. The Special Servicer shall determine the fair value of a Mortgage Loan
on the later of (A) as soon as reasonably practical upon the Mortgage Loan
becoming 60 days delinquent or upon the Balloon Payment becoming delinquent
and (B) the date that is 75 days after the Special Servicer's receipt of the
Servicer Mortgage File relating to such Mortgage Loan, and the Special
Servicer shall promptly notify the Option Holder (and the Trustee and each of
the other parties set forth above that could become the Option Holder) of (i)
the Option Purchase Price and (ii) if such Mortgage Loan is the A Note, that
the A Note is subject to the terms of the Intercreditor Agreement and that any
purchaser of the A Note will be subject to such Intercreditor Agreement. The
Special Servicer is required to recalculate the fair value of the Mortgage
Loan if there has been a material change in circumstances or the Special
Servicer has received new information (including, without limitation, any cash
bids received from the holder of the related B Note in connection with an A
Note), either of which has a material effect on the fair value, provided that
the Special Servicer shall be required to recalculate the fair value of the
Mortgage Loan if the time between the date of last determination of the fair
value of the Mortgage Loan and the date of the exercise of the Option has
exceeded 60 days. Upon any recalculation, the Special Servicer shall be
required to promptly notify in writing each Option Holder (and the Trustee and
each of the other parties set forth above that could become the Option Holder)
of the revised Option Purchase Price. Any such recalculation of the fair value
of the Mortgage Loan shall be deemed to renew the Option in its original
priority at the recalculated price with respect to any party as to which the
Option had previously expired or been waived, unless the Option has previously
been exercised by an Option Holder at a higher Option Purchase Price. In
determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal that it or
the Master Servicer may have obtained in accordance with this Agreement within
the prior twelve months; any views on fair value expressed by Independent
investors in mortgage loans comparable to the Mortgage Loan (provided that the
Special Servicer shall not be obligated
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to solicit such views); the period and amount of any delinquency on the
affected Mortgage Loan; whether to the Special Servicer's actual knowledge,
the Mortgage Loan is in default to avoid a prepayment restriction; the
physical condition of the related Mortgaged Property; the state of the local
economy; the expected recoveries from the Mortgage Loan if the Special
Servicer were to pursue a workout or foreclosure strategy instead of the
Option being exercised; and the Trust's obligation to dispose of any REO
Property as soon as practicable consistent with the objective of maximizing
proceeds for all Certificateholders, but in no event later than the three-year
period (or such extended period) specified in Section 9.15. The parties hereto
acknowledge that under the 2001-TOP3 Pooling and Servicing Agreement, if the
holder of the option thereunder repurchases the 2001-TOP3 Loan in connection
with its exercise of such option, then the holder of the option shall also be
required to purchase the Pari Passu Loan.
(c) Any Option relating to a Mortgage Loan shall be assignable
to a third party (including, without limitation, in connection with an A Note,
the holder of the related B Note) by the Option Holder at its discretion at
any time after its receipt of notice from the Special Servicer that an Option
is exercisable with respect to a specified Mortgage Loan, and upon such
assignment such third party shall have all of the rights granted to the Option
Holder hereunder in respect of the Option. Such assignment shall only be
effective upon written notice (together with a copy of the executed assignment
and assumption agreement) being delivered to the Trustee, the Master Servicer
and the Special Servicer, and none of such parties shall be obligated to
recognize any entity as an Option Holder absent such notice.
(d) If the Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall
be required to determine whether the Option Purchase Price constitutes a fair
price for the Mortgage Loan. Upon request of the Special Servicer to make such
a determination, the Trustee will do so within a reasonable period of time
(but in no event more than 15 Business Days). In doing so, the Trustee may
rely on the opinion of an Appraisal or other expert in real estate matters
retained by the Trustee at the expense of the party exercising the Option. The
Trustee may also rely on the most recent Appraisal of the related Mortgaged
Property that was prepared in accordance with this Agreement. If the Trustee
were to determine that the Option Purchase Price does not constitute a fair
price, then the Special Servicer shall redetermine the fair value taking into
account the objections of the Trustee.
(e) The Option shall terminate, and shall not be exercisable
as set forth in clause (a) above (or if exercised, but the purchase of the
related Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Rehabilitated Mortgage Loan, (ii) been subject to a workout arrangement, (iii)
been foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by the related Seller pursuant to Section 2.3.
In addition, the Option with respect to an A Note shall terminate upon the
purchase of the A Note by the holder of the related B Note pursuant to the
related Intercreditor Agreement.
(f) Unless and until an Option Holder exercises an Option, the
Special Servicer shall continue to service and administer the related Mortgage
Loan in accordance with the Servicing Standard and this Agreement, and shall
pursue such other resolution or recovery
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strategies, including workout or foreclosure, as is consistent with this
Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the Certificateholders
representing more than 50% of the Certificate Balance of the Certificates of
the then Controlling Class may elect the operating adviser (the "Operating
Adviser"). The Operating Adviser shall be elected for the purpose of receiving
reports and information from the Special Servicer in respect of the Specially
Serviced Mortgage Loans.
(b) The initial Operating Adviser is GMAC Institutional
Advisors, a wholly-owned subsidiary of GMAC Commercial Mortgage Corporation.
The Controlling Class shall give written notice to the Trustee, the Paying
Agent and the Master Servicer of the appointment of any subsequent Operating
Adviser (in order to receive notices hereunder). If a subsequent Operating
Adviser is not so appointed, an election of an Operating Adviser also shall be
held. Notice of the meeting of the Holders of the Controlling Class shall be
mailed or delivered to each Holder by the Paying Agent, not less than 10 nor
more than 60 days prior to the meeting. The notice shall state the place and
the time of the meeting, which may be held by telephone. A majority of
Certificate Balance of the Certificates of the then Controlling Class, present
in person or represented by proxy, shall constitute a quorum for the
nomination of an Operating Adviser. At the meeting, each Holder shall be
entitled to nominate one Person to act as Operating Adviser. The Paying Agent
shall cause the election of the Operating Adviser to be held as soon
thereafter as is reasonably practicable.
(c) Each Holder of the Certificates of the Controlling Class
shall be entitled to vote in each election of the Operating Adviser. The
voting in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Paying
Agent on or prior to the date of such election. Immediately upon receipt by
the Paying Agent of votes (which have not been rescinded) from the Holders of
Certificates representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class which are cast for a single Person,
such Person shall be, upon such Person's acceptance, the Operating Adviser.
The Paying Agent shall promptly notify the Trustee of the identity of the
Operating Adviser. Until an Operating Adviser is elected by Holders of
Certificates representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class or in the event that an Operating
Adviser shall have resigned or been removed and a successor Operating Adviser
shall not have been elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Paying Agent, of more
than 50% of the Certificate Balance of the Holders of the Certificates of the
then Controlling Class.
(e) The Paying Agent shall act as judge of each election and,
absent manifest error, the determination of the results of any election by the
Paying Agent shall be conclusive. Notwithstanding any other provisions of this
Section 9.37, the Paying Agent may make such reasonable regulations as it may
deem advisable for any election.
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(f) Notwithstanding any provision of this Section 9.37 or any
other provision of this Agreement to the contrary, at any time that the
Special Servicer has been elected as Operating Adviser or no Operating Adviser
has been elected, (i) the Special Servicer shall not be required to deliver
notices or information to, or obtain the consent or approval of, the Operating
Adviser and (ii) to the extent any Person other than the Special Servicer is
otherwise required hereunder to provide notices or information to, or obtain
the consent or approval of, the Operating Adviser, such Person shall be
required to provide such notices or information to, or obtain the consent or
approval of, the Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER. The
Operating Adviser shall have no liability to the Trust, the holder of any B
Note or the Certificateholders for any action taken, or for refraining from
the taking of any action, in good faith and using reasonable business judgment
pursuant to this Agreement, or using reasonable business judgment. By its
acceptance of a Certificate, each Certificateholder (and Certificate Owner)
confirms its understanding that the Operating Adviser may take actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates and that the Operating Adviser may have special
relationships and interests that conflict with those of Holders of some
Classes of the Certificates and each holder of a B Note (if any) and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating Adviser
may advise, and receive notice from, the Special Servicer, but is not required
to do so on any of the following actions:
(i) any foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come into
and continue in default;
(ii) any modification of a Money Term of a Mortgage Loan
other than a modification consisting of the extension of the original Maturity
Date of a Mortgage Loan for two years or less;
(iii) any proposed sale of a Defaulted Mortgage Loan
(other than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws;
(v) any acceptance of substitute or additional
collateral for a Mortgage Loan that is not otherwise expressly provided for
under the Mortgage Loan documents;
(vi) any acceptance of a discounted payoff;
(vii) any waiver of a "due-on-sale" or
"due-on-encumbrance" clause;
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(viii) any acceptance of an assumption agreement
releasing a Mortgagor from liability under a Mortgage Loan; and
(ix) any release of collateral for a Specially Serviced
Mortgage Loan (other than in accordance with the terms of or upon satisfaction
of, such Mortgage Loan).
With respect to items (vii), (viii) and (ix), the Operating
Adviser shall be subject to the same time periods for advising the Special
Servicer with respect to any such matters as are afforded to the Special
Servicer pursuant to Section 8.7, which periods shall be co-terminous with
those of Special Servicer. In addition, the Operating Adviser may direct the
Trustee to remove the Special Servicer at any time upon the appointment and
acceptance of such appointment by a successor to the Special Servicer;
provided that, prior to the effectiveness of any such appointment, the Trustee
and the Paying Agent shall have received Rating Agency Confirmation from each
Rating Agency. The Operating Adviser shall pay any costs and expenses incurred
by the Trust in connection with the removal and appointment of a Special
Servicer (unless such removal is based on any of the events or circumstances
set forth in Section 9.30(b)). The Trustee shall notify the Paying Agent
promptly upon its receipt of the direction set forth above.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE. With respect to
each A/B Mortgage Loan (if any), pursuant to the related Intercreditor
Agreement, either the Master Servicer (with respect to Mortgage Loans that are
not Specially Serviced Mortgage Loans) or the Special Servicer (with respect
to Specially Serviced Mortgage Loans), as applicable, shall consult with the
holder of the related B Note (or an operating advisor appointed by the holder
of the B Note to act on its behalf at the expense of the holder of the B Note)
regarding its views, and shall provide the holder of the related B Note with
any proposals and back-up materials that are used by either the Master
Servicer or the Special Servicer, as applicable, in developing such proposals
(as reasonably determined by either the Master Servicer or the Special
Servicer, as applicable), including but not limited to (and only if previously
obtained by either the Master Servicer or the Special Servicer, as applicable,
and not previously delivered to such holder of the B Note) property inspection
reports, credit reports, the Mortgagor financial and/or operating statements,
appraisals, engineering reports, soil reports, environmental assessment
reports, seismic reports, architect's certificates, insurance premium receipts
and insurance claim files, with respect to the following actions at least ten
(10) Business Days prior to any such action being taken (but may, in its sole
discretion, reject any advice or direction of such holder of the B Note or
such operating advisor):
(a) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of the Mortgaged
Property;
(b) any modification of a Money Term of the Mortgage Loan or
the related B Note other than a modification consisting of the extension of
the original Maturity Date of a Mortgage Loan for two years or less;
(c) any proposed sale of such Mortgage Loan if it is a
Defaulted Mortgaged Loan or REO Property (other than upon termination of the
Trust pursuant to Article X);
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(d) any acceptance of a discounted payoff on the related
Mortgage Loan or the related B Note;
(e) any determination to bring the related Mortgaged Property
or the related REO Property into compliance with Environmental Laws;
(f) any release of collateral for the related Mortgage Loan or
related B Note (other than in accordance with the terms of, or upon
satisfaction of, such Mortgage Loan and the related B Note);
(g) any acceptance of substitute or additional collateral for
the related Mortgage Loan and the related B Note that is not otherwise
expressly provided for under the terms of such Mortgage Loan and the related B
Note;
(h) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause; and
(i) any acceptance of an assumption agreement releasing such
Mortgage Loan borrower from liability under such Mortgage Loan or the related
B Note.
The holder of the B Note, if any, has agreed pursuant to the
related Intercreditor Agreement that it will provide the Master Servicer or
the Special Servicer, as applicable, with its response within ten (10)
Business Days after its receipt of any such proposal and any back-up materials
and shall be deemed not to have responded if no response is received within
such ten (10) Business Days.
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and
the Paying Agent created hereby (other than the obligation of the Paying
Agent, to make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders and REMIC III Certificateholders as set forth in Section
10.2 and other than the obligations in the nature of information or tax
reporting) shall terminate on the earliest of (i) the later of (A) the final
payment or other liquidation of the last Mortgage Loan remaining in the Trust
(and final distribution to the Certificateholders) and (B) the disposition of
all REO Property (and final distribution to the Certificateholders) or (ii)
the sale of the property held by the Trust in accordance with Section 10.1(b)
or (iii) the termination of the Trust pursuant to Section 10.1(c) below;
provided that in no event shall the Trust created hereby continue beyond the
expiration of 21 years from the death of the last survivor of the descendants
of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St. Xxxxx, living on the date hereof.
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(b) The Master Servicer shall give the Trustee and the Paying
Agent notice of the date when the Aggregate Certificate Balance of the
Certificates, after giving effect to distributions of principal made on the
next Distribution Date, is less than or equal to one percent (1%) of the
initial Aggregate Certificate Balance of the Certificates as of the Cut-Off
Date. The Trustee shall promptly forward such notice to the Depositor, the
Master Servicer, the Special Servicer and the Holders of the Class R-I
Certificates, and the Master Servicer, the Special Servicer and the Holders of
the Class R-I Certificates, in such priority (and in the case of the Class R-I
Certificateholders, a majority of the Class R-I Certificateholders), may
purchase, in whole only, the Mortgage Loans and any other property, if any,
remaining in the Trust. If any party desires to exercise such option, it will
notify the Trustee who will notify any party with a prior right to exercise
such option. If any party that has been provided notice by the Trustee
(excluding the Depositor) notifies the Trustee within ten Business Days after
receiving notice of the proposed purchase that it wishes to purchase the
assets of the Trust, then such party (or, in the event that more than one of
such parties notifies the Trustee that it wishes to purchase the assets of the
Trust, the party with the first right to purchase the assets of the Trust) may
purchase the assets of the Trust in accordance with this Agreement. Upon the
Paying Agent's receipt of the Termination Price set forth below, the Trustee
shall promptly release or cause to be released to the Master Servicer for the
benefit of the Holder of the majority of the Class R-I Certificates, the
Special Servicer or the Master Servicer, as the case may be, the Mortgage
Files pertaining to the Mortgage Loans. The "Termination Price" shall equal
100% of the aggregate Principal Balances of the Mortgage Loans (other than
Mortgage Loans as to which a Final Recovery Determination has been made) on
the day of such purchase plus accrued and unpaid interest thereon at the
applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee
Rate if the Master Servicer is the purchaser), with respect to the Mortgage
Loans to the Due Date for each Mortgage Loan ending in the Collection Period
with respect to which such purchase occurs, plus unreimbursed Advances and
interest on such unreimbursed Advances at the Advance Rate, and the fair
market value of any other property remaining in REMIC I. The Trustee shall
consult with the Placement Agents and the Underwriters or their respective
successors, as advisers, in order for the Trustee to determine whether the
fair market value of the property constituting the Trust has been offered;
provided that, if any Placement Agent or any Underwriter or an Affiliate of
the Placement Agent or the Underwriters is exercising its right to purchase
the Trust assets, the Trustee shall consult with the Operating Adviser in
order for the Trustee to determine the fair market value, provided that the
Operating Adviser is not an Affiliate of the Class R-I Holder, the Special
Servicer or the Master Servicer, or the Trustee (the fees and expenses of
which shall be paid for by buyer of the property). As a condition to the
purchase of the Trust pursuant to this Section 10.1(b), the Holder of the
majority of the Class R-I Certificates, the Special Servicer or the Master
Servicer, as the case may be, must deliver to the Trustee an Opinion of
Counsel, which shall be at the expense of such Holders, the Special Servicer
or the Master Servicer, as the case may be, stating that such termination will
be a "qualified liquidation" under section 860F(a)(4) of the Code. Such
purchase shall be made in accordance with Section 10.3.
(c) If at any time the Holders of the Class R-I Certificates
own 100% of the REMIC III Certificates and Class A-2 Certificates such Holders
may terminate REMIC I (which will in turn result in the termination of REMIC
II and REMIC III) upon (i) the delivery to the Trustee and the Depositor of an
Opinion of Counsel (which opinion shall be at the expense of such Holders)
stating that such termination will be a "qualified liquidation" of each REMIC
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under Section 860F of the Code, and (ii) the payment of any and all costs
associated with such termination. Such termination shall be made in accordance
with Section 10.3.
(d) Upon the termination of the Trust, any funds or other
property held by the Class N Grantor Trust shall be distributed to the Class N
Certificateholders, and any funds or other property held by the Class A-2
Grantor Trust shall be distributed to the Class A-2 Certificateholders, in
each case on a pro rata basis, whether or not the respective Certificate
Balances thereof have been reduced to zero.
(e) Upon the sale of the A Note relating to an A/B Mortgage
Loan by the Trust or the payment in full of such A Note, the related B Note
shall no longer be subject to this Agreement and shall no longer be serviced
by the Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Trustee by first
class mail to the Paying Agent, the Rating Agencies, Class R-I, Class R-II and
REMIC III Certificateholders mailed no later than ten days prior to the date
of such termination. Such notice shall specify (A) the Distribution Date upon
which final distribution on the Certificates will be made, and upon
presentation and surrender of the Certificates at the office or agency of the
Certificate Registrar therein specified, and (B) that the Record Date
otherwise applicable to such Distribution Date is not applicable, distribution
being made only upon presentation and surrender of the Certificates at the
office or agency of the Certificate Registrar therein specified. The Trustee
shall give such notice to the Depositor and the Certificate Registrar at the
time such notice is given to Holders of the Certificates. Upon any such
termination, the duties of the Certificate Registrar with respect to the
Certificates shall terminate and the Trustee shall terminate, or request the
Master Servicer and the Paying Agent to terminate, the Certificate Account and
the Distribution Account and any other account or fund maintained with respect
to the Certificates, subject to the Paying Agent's obligation hereunder to
hold all amounts payable to the Class R-I, Class R-II and REMIC III
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Certificates for cancellation within three
months after the time specified in the above-mentioned written notice, the
Certificate Registrar shall give a second written notice to the remaining
Class R-I, Class R-II and REMIC III Certificateholders to surrender their
certificates evidencing the Certificates for cancellation and receive the
final distribution with respect thereto. If within one year after the second
notice any Certificates shall not have been surrendered for cancellation, the
Certificate Registrar may take appropriate steps to contact the remaining
Class R-I, Class R-II and REMIC III Certificateholders concerning surrender of
such certificates, and the cost thereof shall be paid out of the amounts
distributable to such Holders. If within two years after the second notice any
such Certificates shall not have been surrendered for cancellation, the Paying
Agent shall, subject to applicable state law relating to escheatment, hold all
amounts distributable to such Holders for the benefit of such Holders. No
interest shall accrue on any amount held by the Trustee and not distributed to
a Class R-I, Class R-II or REMIC III Certificateholder due to such
Certificateholder's failure to surrender its Certificate(s)
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for payment of the final distribution thereon in accordance with this Section.
Any money held by the Paying Agent pending distribution under this Section
10.2 after 90 days after the adoption of a plan of complete liquidation shall
be deemed for tax purposes to have been distributed from the REMIC Pools and
shall be beneficially owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in accordance
with the following additional requirements, unless at the request of the
Master Servicer or the Class R-I Certificateholders, as the case may be, the
Trustee seeks, and the Paying Agent subsequently receives an Opinion of
Counsel (at the expense of the Master Servicer or the Class R-I
Certificateholders, as the case may be), addressed to the Depositor, the
Trustee and the Paying Agent to the effect that the failure of the Trust to
comply with the requirements of this Section 10.3 will not (i) result in the
imposition of taxes on "prohibited transactions" on any REMIC Pool under the
REMIC Provisions or (ii) cause any REMIC Pool to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(i) Within 89 days prior to the time of the making of
the final payment on the REMIC III Certificates and Class A-2 Certificates the
Master Servicer shall prepare and the Trustee (on behalf of REMIC I, REMIC II
or REMIC III) shall adopt a plan of complete liquidation of the REMIC I Pool,
meeting the requirements of a qualified liquidation under the REMIC
Provisions, which plan need not be in any special form and the date of which,
in general, shall be the date of the notice specified in Section 10.2(a) and
shall be specified in a statement attached to the federal income tax return of
each REMIC Pool;
(ii) At or after the date of adoption of such a plan of
complete liquidation and at or prior to the time of making of the final
payment on the REMIC III Regular Interests and Class A-2 Certificates, the
Trustee shall sell all of the assets of the Trust for cash at the Termination
Price; provided that if the Holders of the Class R-I Certificates are
purchasing the assets of the Trust, the amount to be paid by such Holders may
be paid net of the amount to be paid to such Holders as final distributions on
any Certificates held by such Holders;
(iii) At the time of the making of the final payment on
the Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC I Regular
Interests, (B) to the Holders of the Class R-II Certificates all remaining
assets of REMIC II after such final payment of the REMIC II Regular Interests
and (C) to the Holders of the Class R-III Certificates all remaining assets of
REMIC III (in each case other than cash retained to meet claims), and the
Trust shall terminate at that time; and
(iv) In no event may the final payment on REMIC I
Regular Interests, REMIC II Regular Interests or REMIC III Regular Interests
or the final distribution or credit to the Holders of the Residual
Certificates, respectively, be made after the 89th day from the date on which
the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or R-III
Certificates, respectively, the Holders thereof hereby (i) authorize the
Trustee to take such action as may be
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necessary to adopt a plan of complete liquidation of the REMIC Pool and (ii)
agree to take such other action as may be necessary to adopt a plan of
complete liquidation of the Trust upon the written request of the Depositor,
which authorization shall be binding upon all successor Class R-I, Class R-II
and Class R-III Certificateholders, respectively.
ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of
the Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder,
shall have any right to vote or in any manner otherwise control the Master
Servicer or operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Certificateholders
from time to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate
Principal Amount of the Certificates then outstanding shall have made written
request upon the Trustee to institute such action, suit or proceeding in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the cost, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for sixty days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request has been given the Trustee
during such sixty-day period by such Certificateholders; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue or by
availing of any provision of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of such Certificates, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Agreement, except in the manner herein provided
and for the benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
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SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate
Registrar, the Certificate Registrar will furnish or cause to be furnished to
the Trustee and the Paying Agent, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee or the Paying Agent, as the
case may be, in writing, a list, in such form as the Trustee or the Paying
Agent, as the case may be, may reasonably require, of the names and addresses
of the Certificateholders of each Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer, the Trustee or three or more Holders
(hereinafter referred to as "applicants," with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates
being viewed as a single "applicant" for these purposes) apply in writing to
the Paying Agent and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such applicants propose to transmit, then the Paying Agent
shall, within five Business Days after the receipt of such application, send,
at such Person's expense, the written communication proffered by the
applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar, the Paying Agent, the
Master Servicer and the Trustee that neither the Depositor, the Certificate
Registrar, the Paying Agent, the Master Servicer nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Certificateholders hereunder, regardless of the
source from which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Depositor and the Paying Agent. Such instrument or instruments (as the action
embodies therein and evidenced thereby) are herein sometimes referred to as an
"Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agents
shall be sufficient for any purpose of this Agreement and conclusive in favor
of the Trustee, the Depositor and the Paying Agent, if made in the manner
provided in this Section. The Trustee agrees to promptly notify the Depositor
of any such instrument or instruments received by it, and to promptly forward
copies of the same.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments or deeds, certifying that the
individual signing such instrument or writing acknowledged to such notary
public or
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other officer the execution thereof. Whenever such execution is by an officer
of a corporation or a member of a partnership on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient
proof of such officer's or member's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the
individual executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor nor the Paying Agent shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Trustee, the Paying Agent or the Depositor in reliance
thereon, whether or not notation of such action is made upon such Certificate.
ARTICLE XII
REMIC ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf of
the Trustee to treat the segregated pool of assets consisting of the Mortgage
Loans, the Loan REMIC Regular Interest, such amounts as shall from time to
time be held in the Certificate Account and the Distribution Account, the
Insurance Policies and any REO Properties as a REMIC ("REMIC I") under the
Code, other than any portion of the foregoing amounts allocable to a B Note.
Such elections will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the Loan REMIC Regular Interest
and the REMIC I Interests are issued. For purposes of such election, the REMIC
I Regular Interests shall each be designated as a separate Class of "regular
interests" in REMIC I and the Class R-I Certificates shall be designated as
the sole Class of "residual interests" in REMIC I. The Trustee and the Paying
Agent shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any of the REMICs other than the REMIC I Regular
Interests, the REMIC II Regular Interests, the REMIC III Regular Interests and
the Residual Certificates.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC ("REMIC II") under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in
which the REMIC II Interests are issued. For the purposes of such election,
the REMIC II
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Regular Interests shall be designated as the "regular interests" in REMIC II
and the Class R-II Certificates shall be designated as the sole Class of the
"residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC ("REMIC III") under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in
which the REMIC III Certificates and Class A-2 Certificates are issued. For
purposes of such election, the Class A-1, Class A-3, Class X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class
K, Class L, Class M and Class N Certificates and the Class A-2 Regular
Interest shall be designated as the "regular interests" in REMIC III and the
Class R-III Certificates shall be designated as the sole Class of "residual
interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup Day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
The assets of the Class N Grantor Trust, consisting of the
right to any Excess Interest in respect of the ARD Loans and the Excess
Interest Sub-account, shall be held by the Trustee for the benefit of the
Holders of the Class N Grantor Trust Interest represented by the Class N
Certificates, which Class N Certificates, in the aggregate, will evidence 100%
beneficial ownership of such assets from and after the Closing Date. The Class
A-2 Certificates are hereby designated as undivided beneficial interests in
the Class A-2 Regular Interest, the Swap Contract and the proceeds thereof,
which portions of the Trust Fund will be treated as a grantor trust within the
meaning of subpart E, part I of Subchapter J of the Code. It is intended that
the Class N Grantor Trust and Class A-2 Grantor Trust will be treated as
separate grantor trusts for federal income tax purposes, and each of the
parties to this Agreement agrees that it will not take any action that is
inconsistent with establishing or maintaining such treatment. The Trustee
shall be deemed to hold and shall account for each of the Class N Grantor
Trust and the Class A-2 Grantor Trust separate and apart from the assets of
any REMIC created hereunder.
(c) The Paying Agent shall pay all routine tax related
expenses (not including any taxes, however denominated, including any
additions to tax, penalties and interest) of each REMIC Pool, excluding any
professional fees or extraordinary expenses related to audits or any
administrative or judicial proceedings with respect to each REMIC Pool that
involve the Internal Revenue Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed, and
timely filed with the Internal Revenue Service, on behalf of each REMIC Pool,
an application for a taxpayer identification number for such REMIC Pool on
Internal Revenue Service Form SS-4. The Paying Agent, upon receipt from the
Internal Revenue Service of the Notice of Taxpayer Identification Number
Assigned, shall promptly forward a copy of such notice to the Depositor and
the Master Servicer. The Paying Agent shall prepare and file Form 8811 on
behalf of each REMIC Pool and shall designate an appropriate Person to respond
to inquiries by or on behalf of Certificateholders for original issue discount
and related information in accordance with applicable provisions of the Code.
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(e) The Paying Agent shall prepare and file all of each REMIC
Pool's federal and state income or franchise tax and information returns as
such REMIC Pool direct representative; the expenses of preparing and filing
such returns shall be borne by the Paying Agent, except that if additional
state tax returns are required to be filed in more than three states, the
Paying Agent shall be entitled, with respect to any such additional filings,
to (i) be paid a reasonable fee and (ii) receive its reasonable costs and
expenses, both as amounts reimbursable pursuant to Section 5.2(a)(vi) hereof.
The Depositor, the Master Servicer and the Special Servicer shall provide on a
timely basis to the Paying Agent or its designee such information with respect
to the Trust or any REMIC Pool as is in its possession, which the Depositor or
the Master Servicer and the Special Servicer has received or prepared by
virtue of its role as Depositor or Master Servicer and the Special Servicer
hereunder and reasonably requested by the Paying Agent to enable it to perform
its obligations under this subsection, and the Paying Agent shall be entitled
to conclusively rely on such information in the performance of its obligations
hereunder. The Depositor shall indemnify the Trust, the Trustee, the Paying
Agent and the Fiscal Agent for any liability or assessment against any of them
or cost or expense (including attorneys' fees) incurred by them resulting from
any error resulting from bad faith, negligence, or willful malfeasance of the
Depositor in providing any information for which the Depositor is responsible
for preparing. The Master Servicer and the Special Servicer shall indemnify
the Trustee, the Fiscal Agent, the Paying Agent and the Depositor for any
liability or assessment against the Trustee, the Fiscal Agent, the Depositor,
the Paying Agent or any REMIC Pool and any expenses incurred in connection
with such liability or assessment (including attorneys' fees) resulting from
any error in any of such tax or information returns resulting from errors in
the information provided by the Master Servicer or the Special Servicer, as
the case may, be or caused by the negligence, willful misconduct or bad faith
of the Master Servicer or the Special Servicer, as the case may be. The Paying
Agent shall indemnify the Master Servicer, the Depositor or any REMIC Pool for
any expense incurred by the Master Servicer, the Depositor and any REMIC Pool
resulting from any error in any of such tax or information returns resulting
from errors in the preparation of such returns caused by the negligence,
willful misconduct or bad faith of the Paying Agent. Each indemnified party
shall immediately notify the indemnifying party or parties of the existence of
a claim for indemnification under this Section 12.1(e), and provide the
indemnifying party or parties, at the expense of such indemnifying party or
parties, an opportunity to contest the tax or assessment or expense giving
rise to such claim, provided that the failure to give such notification rights
shall not affect the indemnification rights in favor of any REMIC Pool under
this Section 12.1(e). Any such indemnification shall survive the resignation
or termination of the Master Servicer, the Paying Agent or the Special
Servicer, or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC Pool under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, the Paying Agent shall provide (i) to the Internal
Revenue Service or other Persons (including, but not limited to, the
Transferor of a Residual Certificate, to a Disqualified Organization or to an
agent that has acquired a Residual Certificate on behalf of a Disqualified
Organization) such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any Disqualified
Organization and (ii) to the Certificateholders such information or reports as
are required by the Code or REMIC Provisions.
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(g) The Paying Agent shall forward to the Depositor copies of
quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the
Paying Agent as the Depositor may reasonably request in writing. Moreover, the
Paying Agent shall forward to each Certificateholder such forms and furnish
such information within its control as are required by the Code to be
furnished to them, shall prepare and file with the appropriate state
authorities as may to the actual knowledge of a Responsible Officer of the
Paying Agent be required by applicable law and shall prepare and disseminate
to Certificateholders Internal Revenue Service Forms 1099 (or otherwise
furnish information within the control of the Paying Agent) to the extent
required by applicable law. The Paying Agent will make available to any
Certificateholder any tax related information required to be made available to
Certificateholders pursuant to the Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests in
Class R-I, Class R-II and Class R-III Certificates, respectively (or of the
greatest percentage of such Class R-I, Class R-II and Class R-III Certificates
if no Holder holds more than 50% thereof), shall be the applicable REMIC's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC
Pools are hereby delegated to the Paying Agent and each Residual
Certificateholder, by acceptance of its Residual Certificate, agrees, on
behalf of itself and all successor holders of such Residual Certificate, to
such delegation to the Paying Agent as their agent and attorney in fact. If
the Code or applicable regulations prohibits the Paying Agent from signing any
applicable Internal Revenue Service, court or other administrative documents
or from acting as Tax Matters Person (as an agent or otherwise), the Paying
Agent shall take whatever action is necessary for the signing of such
documents and designation of a Tax Matters Person, including the designation
of such Residual Certificateholder. The Paying Agent shall not be required to
expend or risk its own funds or otherwise incur any other financial liability
in the performance of its duties hereunder or in the exercise of any of its
rights or powers (except to the extent of the ordinary expenses of performing
its duties under this Agreement), if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the Residual
Certificates, the Master Servicer and the Special Servicer shall each exercise
reasonable care, to the extent within its control, and with respect to each of
the Trustee, Paying Agent, the Master Servicer and the Special Servicer, within
the scope of its express duties, and shall each act in accordance with this
Agreement and the REMIC Provisions in order to create and maintain the status of
each REMIC Pool as a REMIC and each of the Class N Grantor Trust and Class A-2
Grantor Trust as grantor trusts or, as appropriate, adopt a plan of complete
liquidation with respect to each REMIC Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the
Special Servicer, the Fiscal Agent and the Holders of Residual Certificates
shall not take any action or fail to take any action or cause any REMIC Pool
to take any action or fail to take any action if any of such persons knows or
could, upon the exercise of reasonable diligence, know, that, under the REMIC
Provisions such action or failure, as the case may be, could (i) endanger the
status of any REMIC Pool as a REMIC, (ii) result in the imposition of a tax
upon any REMIC Pool (including but not limited to the tax on prohibited
transactions as defined in Code Section 860F(a)(2)) or (iii)
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endanger the status of either the Class N Grantor Trust or the Class A-2
Grantor Trust unless the Trustee and the Paying Agent have received an Opinion
of Counsel (at the expense of the party seeking to take such action) to the
effect that the contemplated action will not endanger such status or result in
the imposition of such a tax. Any action required under this section which
would result in an unusual or unexpected expense shall be undertaken at the
expense of the party seeking the Trustee, the Paying Agent or the Holders of
the Residual Certificates to undertake such action. Under no circumstances may
the Trustee vary the assets of either the Class N Grantor Trust or the Class
A-2 Grantor Trust so as to take advantage of variations in the market so as to
improve the rate of return of Holders of the Class N or Class A-2
Certificates.
(k) In the event that any tax is imposed on any REMIC created
hereunder, including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC created hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, and any other tax imposed by the Code or any
applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without
limitation, penalties and reasonable attorneys' fees), shall be charged to and
paid by: (i) the Paying Agent, if such tax arises out of or results from a
breach of any of its obligations under this Agreement; (ii) the Special
Servicer, if such tax arises out of or results from a breach by the Special
Servicer of any of its obligations under this Agreement; (iii) the Master
Servicer, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under this Agreement; (iv) the Fiscal
Agent, if such tax arises out of or results from a breach by the Fiscal Agent
of any of its obligations under this Agreement; and (v) the Trust in all other
instances. Any tax permitted to be incurred by the Special Servicer pursuant
to Section 9.14(e) shall be charged to and paid by the Trust from the net
income generated on the related REO Property. Any such amounts payable by the
Trust in respect of taxes shall be paid by the Paying Agent out of amounts on
deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for
federal income tax purposes, maintain books and records with respect to each
REMIC Pool on a calendar year and on an accrual basis, and with respect to the
Class N Grantor Trust and the Class A-2 Grantor Trust, on the cash or accrual
method and so as to enable reporting to Holders of Class N and Class A-2
Certificates based on their annual accounting period. Notwithstanding anything
to the contrary contained herein, except to the extent provided otherwise in
the Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage
Loans shall, for federal income tax purposes, be allocated first to interest
due and payable on the Mortgage Loans (including interest on overdue interest,
other than additional interest at a penalty rate payable following a default).
The books and records must be sufficient concerning the nature and amount of
each REMIC Pool's investments to show that such REMIC Pool has complied with
the REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master Servicer
nor the Special Servicer shall enter into any arrangement by which any REMIC
Pool will receive a fee or other compensation for services.
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(n) In order to enable the Paying Agent to perform its duties
as set forth herein, the Depositor shall provide, or cause to be provided, to
the Paying Agent within ten (10) days after the Closing Date all information
or data that the Paying Agent reasonably determines to be relevant for tax
purposes on the valuations and offering prices of the Certificates, including,
without limitation, the yield, prepayment assumption, issue prices and
projected cash flows of the Certificates, as applicable, and the projected
cash flows of the Mortgage Loans. Thereafter, the Depositor shall provide to
the Paying Agent or its designee, promptly upon request therefor, any such
additional information or data within the Depositor's possession or knowledge
that the Paying Agent may, from time to time, reasonably request in order to
enable the Paying Agent to perform its duties as set forth herein. The Paying
Agent is hereby directed to use any and all such information or data provided
by the Depositor in the preparation of all federal and state income or
franchise tax and information returns and reports for each REMIC Pool to
Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Paying Agent, the Fiscal Agent, and each REMIC Pool for any
losses, liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Paying Agent, the Fiscal Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the
Paying Agent (but not resulting from the methodology employed by the Paying
Agent) on a timely basis and such indemnification shall survive the
termination of this Agreement and the termination or resignation of the Paying
Agent and the Fiscal Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that
it shall use its best reasonable efforts to retain in confidence, and shall
ensure that its officers, employees and representatives retain in confidence,
and shall not disclose, without the prior written consent of the Depositor,
any or all of such information or data, or make any use whatsoever (other than
for the purposes contemplated by this Agreement) of any such information or
data without the prior written consent of the Depositor, unless such
information is generally available to the public (other than as a result of a
breach of this Section 12.1(n)) or is required by law or applicable
regulations to be disclosed or is disclosed (i) to independent auditors and
accountants, counsel and other professional advisers of the Paying Agent and
its parent, or (ii) in connection with its rights and obligations under this
Agreement.
(o) At all times as may be required by the Code, the Master
Servicer will to the extent within its control and the scope of its duties
more specifically set forth herein, maintain substantially all of the assets
of REMIC I as "qualified mortgages" as defined in Section 860G(a)(3) of the
Code and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" for each Class of
Certificates representing a regular interest in REMIC III, for the Class A-2
Regular Interest, for each Class of REMIC I Regular Interests and for each
Class of REMIC II Regular Interests is the Distribution Date in November 2033,
provided that the "latest possible maturity date" for the Class X-2
Certificates is the Distribution Date in November 2008.
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SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither
the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer
shall permit the sale, disposition or substitution of any of the Mortgage
Loans (except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in
Section 860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II
hereof), nor acquire any assets for the Trust, except as provided in Article
II hereof, nor sell or dispose of any investments in the Certificate Account
or Distribution Account for gain, nor accept any contributions to any REMIC
Pool (other than a cash contribution during the 3-month period beginning on
the Startup Day), unless it has received an Opinion of Counsel (at the expense
of the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC I Regular Interests, REMIC
II Regular Interests or REMIC III Regular Interests, as applicable, as the
regular interests therein, (B) affect the distribution of interest or
principal on the Certificates, (C) result in the encumbrance of the assets
transferred or assigned to any REMIC Pool (except pursuant to the provisions
of this Agreement) or (D) cause any REMIC Pool to be subject to a tax on
"prohibited transactions" or "prohibited contributions" or other tax pursuant
to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Paying
Agent, the Master Servicer nor the Special Servicer shall permit any
modification of a Money Term of a Mortgage Loan or a Specially Serviced
Mortgage Loan unless (i) the Trustee, the Special Servicer, Paying Agent and
the Master Servicer have received a Nondisqualification Opinion or a ruling
from the Internal Revenue Service (at the expense of the party making the
request that the Master Servicer or the Special Servicer modify the Mortgage
Loan or a Specially Serviced Mortgage Loan) to the effect that such
modification would not be treated as an exchange pursuant to Section 1001 of
the Code (or, if it would be so treated, would not be treated as a
"significant modification" for purposes of Treas. Reg. Sec. 1.860G-2(B) of the
Code) or (ii) such modification meets the requirements set forth in Sections
8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a
result of a prohibited transaction or prohibited contribution subject to
taxation under the REMIC Provisions due to the negligent performance by either
the Trustee or the Paying Agent of its respective duties and obligations set
forth herein, the Trustee or the Paying Agent, as the case may be, shall be
liable to the REMIC Pools and the Holders of the Residual Certificates for any
and all losses, claims, damages, liabilities or expenses ("Losses") resulting
from such negligence and relating to the Residual Certificates; provided,
however, that the Trustee, or the Paying Agent, as applicable, shall not be
liable for any such Losses attributable to the action or inaction of the
Master Servicer, the Special Servicer, the Trustee (with respect to the Paying
Agent), the Paying Agent (with respect to the Trustee), the Depositor or the
Holders of such Residual Certificates nor for any such Losses resulting from
any actions or failure to act based upon reliance on an Opinion of Counsel or
from misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may
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be, has relied. The foregoing shall not be deemed to limit or restrict the
rights and remedies of the Holders of the Residual Certificates now or
hereafter existing at law or in equity. The Trustee or the Paying Agent shall
be entitled to intervene in any litigation in connection with the foregoing
and to maintain control over its defense.
SECTION 12.5 GRANTOR TRUST REPORTINGThe parties intend that the
portions of the Trust consisting of the Class N Grantor Trust and the Class
A-2 Grantor Trust shall constitute, and that the affairs of the Trust
(exclusive of the REMIC Pools) shall be conducted so as to qualify each such
portion as, a "grantor trust" under the Code, and the provisions hereof shall
be interpreted consistently with this intention. In furtherance of such
intention, the Paying Agent shall furnish or cause to be furnished to the
Class N Certificateholders and Class A-2 Certificateholders and shall file, or
cause to be filed with the Internal Revenue Service, together with Form 1041
or such other form as may be applicable, information returns with respect to
income relating to their shares of the income and expenses of the Class N
Grantor Trust and the Class A-2 Grantor Trust, respectively, at the time or
times and in the manner required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied,
oral or written, of any nature whatsoever with respect to the subject matter
hereof. The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without notice to or the consent of any of the Holders, (i) to
cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust or this Agreement in the Private Placement Memorandum,
the Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to amend any provision
hereof to the extent necessary or desirable to maintain the status of each
REMIC Pool as a REMIC (or the interest represented by the Class N Grantor
Trust Interest or the Class A-2 Grantor Trust as a grantor trust) for the
purposes of federal income tax law (or comparable provisions of state income
tax law), (iv) to make any other provisions with respect to matters or
questions arising under or with respect to this Agreement not inconsistent
with the provisions hereof, (v) to modify, add to or eliminate the provisions
of Article III relating to transfers of Residual Certificates or (vi) any
other amendment
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which does not adversely affect in any material respect the interests of any
Certificateholder (unless such Certificateholder consents). No such amendment
effected pursuant to clause (i), (ii) or (iv) of the preceding sentence shall
(A) adversely affect in any material respect the interests of any Holder not
consenting thereto, and no amendment shall adversely affect the status of any
REMIC Pool as a REMIC (or the Class N Grantor Trust and the Class A-2 Grantor
Trust as grantor trusts) without the consent of 100% of the Certificateholders
or (B) adversely affect the status of any REMIC Pool as a REMIC (or the Class
N Grantor Trust Interest and the Class A-2 Grantor Trust as grantor trusts).
Prior to entering into any amendment without the consent of Holders pursuant
to this paragraph, the Trustee may require an Opinion of Counsel and a
Nondisqualification Opinion (in the case of clauses (i), (ii) and (iii), at
the expense of the Depositor, and otherwise at the expense of the party
requesting such amendment, except that if the Trustee requests such amendment,
such amendment shall be at the expense of the Depositor, if the Depositor
consents), to the effect that such amendment is permitted under this
paragraph. Any such amendment shall be deemed not to adversely affect in any
material economic respect any Holder if the Trustee receives a Rating Agency
Confirmation from each Rating Agency (and any Opinion of Counsel requested by
the Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time
by the agreement of the parties hereto (without the consent of the
Certificateholders) and with the written confirmation of the Rating Agencies
that such amendment would not cause the ratings on any Class of Certificates
to be qualified, withdrawn or downgraded; provided, however, that such
amendment may not effect any of the items set forth in clauses (i) through
(iv) of the proviso in paragraph (c) of this Section 13.3. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an
Opinion of Counsel that any amendment pursuant to this Section 13.3(b) is
permitted by this Agreement at the expense of the party requesting the
amendment.
(c) This Agreement may also be amended from time to time by
the parties with the consent of the Holders of not less than 51% of the
Aggregate Certificate Balance of the Certificates then outstanding, for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Holders; provided that no such amendment may (i) reduce in any
manner the amount of, or delay the timing of the distributions required to be
made on any Certificate without the consent of the Holder of such Certificate,
(ii) reduce the aforesaid percentages of Aggregate Certificate Percentage or
Certificate Balance, the Holders of which are required to consent to any such
amendment without the consent of all the Holders of each Class of Certificates
affected thereby, (iii) no such amendment shall eliminate the Master
Servicer's, the Special Servicer's, the Trustee's or the Fiscal Agent's
obligation to Advance or alter the Servicing Standard except as may be
necessary or desirable to comply with the REMIC Provisions or (iv) adversely
affect the status of any REMIC Pool as a REMIC for federal income tax purposes
(as evidenced by a Nondisqualification Opinion) or the Class N Grantor Trust
and the Class A-2 Grantor Trust as grantor trusts, without the consent of 100%
of the Certificateholders (including the Class R-I, Class R-II and Class R-III
Certificateholders); provided that no such amendment may modify Section 8.18
of this Agreement without Rating Agency Confirmation. The Trustee may request,
at its option, to receive a Nondisqualification Opinion and an Opinion of
Counsel that any
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amendment pursuant to this Section 13.3(c) is permitted by this Agreement at
the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such amendment
shall be borne by the Depositor in the case the Trustee is the party
requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of
Section 13.3(a). In all other cases, the costs and expenses shall be borne by
the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment
to each Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders under
this Section 13.3 to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Holders shall be in the affirmative
and in writing and shall be subject to such reasonable regulations as the
Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in this
Section 13.3, the parties hereto agree that this Agreement may not be amended
in any manner that is reasonably likely to have an adverse effect on any
Primary Servicer without first obtaining the written consent of such Primary
Servicer. Furthermore, notwithstanding any contrary provisions of this
Agreement, this Agreement may not be amended in a manner that would adversely
affect the distributions to the Swap Counterparty or the rights of the Swap
Counterparty under the Swap Contract without the consent of the Swap
Counterparty (which shall not be unreasonably withheld).
(h) Notwithstanding the fact that the provisions in Section
13.3(c) would otherwise apply, with respect to any amendment that
significantly modifies the permitted activities of the Trustee, any Primary
Servicer, the Master Servicer or the Special Servicer, any Certificate
beneficially owned by a Seller or any of its Affiliates shall be deemed not to
be outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 13.3 have been obtained.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
APPLIED IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Bear Xxxxxxx Commercial Mortgage
Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, with a copy to Xxxxxx X. Xxxxxxxxx,
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Jr., Legal Department; (B) in the case of the Trustee and the Fiscal Agent at
the Corporate Trust Office; (C) in the case of the Master Servicer, Xxxxx
Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of the
Special Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Bieber (with a
copy to General Counsel at such address); (E) in the case of Principal,
Principal Capital Management, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxxxx, Esq.; (F) in the
case of JHREF, Xxxx Xxxxxxx Real Estate Finance, Inc., 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx, Senior Vice President,
with copies to the attention of Xxxxxxx X. Xxxxxxx, Esq. and Xxxxxxxxx X.
Xxxxxxxx, Esq.; (G) in the case of BSF, Bear, Xxxxxxx Funding, Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior
Managing Director, Commercial Mortgage Department, with copies to the
attention of Xxxxxx X. Xxxxxxxxx, Xx., Managing Director, Legal Department;
(H) in the case of MSDWMC, Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, with a
copy to: Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel; (I) in the case of the initial
Operating Adviser, GMAC Institutional Advisors, Attention: Xxxxx Xxxx, 000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000; (J) in the
case of the Paying Agent, Xxxxx Fargo Bank Minnesota, National Association,
00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Services (CMBS) Bear Xxxxxxx Commercial Mortgage Securities Inc., Series
2001-TOP4; (K) in the case of the initial holder of a B Note, as specified in
the Intercreditor Agreement; and (L) in the case of the Swap Counterparty,
Xxxxx Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000, facsimile number (000) 000-0000, Attention: Portfolio
Manager; or as to each party such other address as may hereafter be furnished
by such party to the other parties in writing. Any notice required or
permitted to be mailed to a Holder shall be given by first class mail, postage
prepaid, at the address of such Holder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or of
the Certificates or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power
or privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power or privilege with respect to any other occurrence. No
waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
-247-
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only,
and shall not be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other
than the parties to this Agreement (including the Primary Servicers to the
extent applicable to such Primary Servicer) and their successors hereunder and
the Holders of the Certificates, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement; provided, however, that the
Mortgagors set forth on Schedule VIII hereto are intended third-party
beneficiaries of the fifth and sixth paragraph of Section 2.3(a), the holder
of each B Note, if any, is an intended third-party beneficiary in respect of
the rights afforded it hereunder, and the Swap Counterparty and its permitted
successors and assigns shall be third party beneficiaries with respect to this
Agreement.
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating
Agencies, Special Servicer, the Swap Counterparty and the Operating Adviser of
the occurrence of any of the following events of which it has notice:
(i) any amendment to this Agreement pursuant to Section
13.3 hereof;
(ii) the Interim Certification and the Final
Certification required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or
REO Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special
Servicer, the Paying Agent, the Operating Adviser or the Trustee pursuant to
this Agreement;
(v) the appointment of any successor to the Master
Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the Operating
Adviser or the Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in
Section 8.7;
(vii) waiver of a prohibition on subordinate liens on
the Mortgaged Properties;
(viii) the making of a final payment pursuant to Section
10.3 hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
-248-
(b) All notices to the Rating Agencies shall be in writing and
sent by first Class mail, telecopy or overnight courier, as follows:
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Structured Finance Commercial Real Estate Monitoring
If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Commercial Mortgage Surveillance Manager
or at such address as shall be provided in writing to the
Depositor by such Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii), the
successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee pursuant
to Section 7.6; or
(ii) the appointment of a successor trustee pursuant to
Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating Agencies
and the Depositor any other information as reasonably requested by the Rating
Agencies and the Depositor, and shall deliver to the Primary Servicers and the
Special Servicer each of the reports required to be delivered by the Master
Servicer to the Primary Servicers and the Special Servicer pursuant to the
terms of this Agreement. The Trustee, the Paying Agent and the Special
Servicer shall deliver to the Rating Agencies and the Depositor any
information as reasonably requested by the Rating Agencies and Depositor, as
the case may be.
(e) Any notice or other document required to be delivered or
mailed by the Depositor, Master Servicer, Paying Agent or Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
-249-
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
SECTION 13.12 INTENTION OF PARTIES. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans and related
rights and property to the Trustee, for the benefit of the Certificateholders,
by the Depositor as provided in Section 2.1 be, and be construed as, an
absolute sale of the Mortgage Loans and related property. It is, further, not
the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans and related property by the Depositor to the Trustee to secure
a debt or other obligation of the Depositor. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans or any related
property is held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans or any related property, then this Agreement shall be deemed to
be a security agreement; and the conveyance provided for in Section 2.1 shall
be deemed to be a grant by the Depositor to the Trustee, for the benefit of
the Certificateholders, of a security interest in all of the Depositor's
right, title, and interest, whether now owned or hereafter acquired, in and
to:
(i) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment property consisting
of, arising from or relating to any of the property described in clauses
(1)-(4) below: (1) the Mortgage Loans, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other insurance policies
identified on the Mortgage Loan Schedule, including all Qualified Substitute
Mortgage Loans, all distributions with respect thereto payable on and after
the Cut-Off Date, and the Mortgage Files; (2) the Distribution Account, all
REO Accounts, and the Certificate Account, including all property therein and
all income from the investment of funds therein (including any accrued
discount realized on liquidation of any investment purchased at a discount);
(3) the REMIC I Regular Interests and the REMIC II Regular Interests; and (4)
the Mortgage Loan Purchase Agreements;
(ii) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims against
other Persons with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on liquidation of
any investment purchased at a discount); and
All cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the
Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall
be deemed to be possession by the secured party or possession by a purchaser
for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-115 and 9-305
thereof) as in force in the relevant jurisdiction.
-250-
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or
persons holding for, the Trustee, as applicable, for the purpose of perfecting
such security interest under applicable law.
The Depositor and, at the Depositor's direction, the Master
Servicer and the Trustee, shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Master Servicer shall file, at the
expense of the Trust as an Additional Trust Expense all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned
by any transfer of any interest of the Master Servicer or the Depositor in
such property. In connection herewith, the Trustee shall have all of the
rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere. Such recordation, if any,
shall be effected by the Master Servicer at the expense of the Trust as an
Additional Trust Expense, but only upon direction of the Depositor accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties hereto
acknowledge that on the Closing Date the Sellers will pay the ongoing
monitoring fees of the Rating Agencies relating to the rating of the
Certificates and that no monitoring fees are payable subsequent to the Closing
Date in respect of the rating of the Certificates. The Master Servicer shall
not be required to pay any such fees or any fees charged for any Rating Agency
Confirmation (except any confirmation required under Section 8.22, Section
8.23 or in connection with a termination and replacement of the Master
Servicer following an Event of Default of the Master Servicer).
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICERS. Each of the
Primary Servicers agrees, to the extent applicable to such Primary Servicer
and the Mortgage Loans serviced by such Primary Servicer, to be bound by the
terms of Sections 5.1(g), 8.3, 8.4, 8.7, 8.10, 8.18 and 8.25(d) of this
Agreement.
-251-
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar,
the Authenticating Agent and the Fiscal Agent have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
as Depositor
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx XxXxxxx
--------------------------------
Name: Xxxxxxx XxXxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION, as
Special Servicer
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxx X. Xxxxx
--------------------------------
Name: Xxx X. Xxxxx
Title: Assistant Vice President
-252-
ABN AMRO BANK N.V., as Fiscal Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Paying Agent and
Certificate Registrar
By: /s/ Xxx Xxxxx
--------------------------------
Name: Xxx Xxxxx
Title: Assistant Vice President
PRINCIPAL CAPITAL MANAGEMENT, LLC, acting
solely in its capacity as Primary Servicer
with respect to the sections referred to in
Section 13.15 of the Agreement
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Counsel
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
XXXX XXXXXXX REAL ESTATE FINANCE, INC.,
acting solely in its capacity as Primary
Servicer with respect to the sections
referred to in Section 13.15 of the
Agreement
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
-253-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, a notary public in
and for said State, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Bear Xxxxxxx
Commercial Mortgage Securities Inc., and acknowledged to me that such
corporation executed the within instrument pursuant to its by-laws or a
resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-254-
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this day of November, 2001, before me, a notary public in and
for said State, personally appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President of , and
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-255-
STATE OF )
) ss.:
COUNTY OF )
On the day of November, 2001, before me, a notary public
in and for said State, personally appeared known to me to
be a of , one of the entities that executed the within
instrument, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-256-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, a notary public
in and for said State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President on behalf of
, and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-257-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, a notary public
in and for said State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President on behalf of
, and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-258-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of November, 2001, before me, a notary public in and
for said State, personally appeared __________________, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ________________
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
Notary Public
-259-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of November, 2001, before me, a notary public
in and for said State, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the within instrument as Vice President on behalf of
and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
official seal the day and year in this certificate first above written.
-260-
-----------------------------------------------------------------
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.,
AS DEPOSITOR,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS MASTER SERVICER,
GMAC COMMERCIAL MORTGAGE CORPORATION,
AS SPECIAL SERVICER,
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
AS PAYING AGENT AND CERTIFICATE REGISTRAR
AND
ABN AMRO BANK N.V.,
AS FISCAL AGENT
-------------------------------------------
EXHIBITS AND SCHEDULES TO
POOLING AND SERVICING AGREEMENT
DATED AS OF NOVEMBER 1, 2001
-------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2001-TOP4
-----------------------------------------------------------------
EXHIBIT A-1
[FORM OF CLASS A-1 CERTIFICATE]
THIS CLASS A-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-1 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 5.06% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-1 CERTIFICATES AS OF THE TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: $389,161,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-1 FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$389,161,000 CUSIP XX. 00000X XX 0
Xx. X-0-0
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms
specified in this Certificate and terms specified in the Pooling and Servicing
Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be
made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata
share of the amount to be distributed on the Certificates of this Class as of
such Distribution Date, with a final distribution to be made upon retirement
of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections
and recoveries respecting the Mortgage Loans, all as more specifically set
forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made
by wire transfer in immediately available funds to the account specified by
the Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and
Servicing Agreement at any time by the parties thereto with the consent of the
Holders of not less than 51% of the Aggregate Certificate Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon the Certificate. The Pooling and Servicing Agreement also permits
the amendment thereof, in certain circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons,
in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of the same Class in authorized denominations as requested by
the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent,
the Master Servicer, the Special Servicer and the Certificate Registrar and
any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature
of information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of
the Pooling and Servicing Agreement or (iii) the termination of the Trust
pursuant to Section 10.1(c) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The parties designated in the Pooling and Servicing Agreement
may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and
of all administrative expenses associated with the Trust, any remaining assets
of the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------------ ------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account of
account number
or, if mailed by check, to . Statements
should be mailed to . This information is provided by
assignee named above, or , as its agent.
EXHIBIT A-2
[FORM OF CLASS A-2 CERTIFICATE]
THIS CLASS A-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-2 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 2.64% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-2 CERTIFICATES AS OF THE TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: $60,000,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-2 FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$60,000,000 CUSIP XX. 00000X XX 0
Xx. X-0-0
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee
and the Paying Agent. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms
specified in this Certificate and terms specified in the Pooling and Servicing
Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Class A-2 Available Funds, to the extent and subject
to the limitations set forth in the Pooling and Servicing Agreement, on the
15th day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed on the basis
of the actual number of days elapsed during the related Interest Accrual
Period and a 360-day year) during the Interest Accrual Period relating to such
Distribution Date at the Pass-Through Rate on the Certificate Balance of this
Certificate immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the amount to be
distributed on the Certificates of this Class as of such Distribution Date,
with a final distribution to be made upon retirement of this Certificate as
set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of ;the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made
by wire transfer in immediately available funds to the account specified by
the Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and
Servicing Agreement at any time by the parties thereto with the consent of the
Holders of not less than 51% of the Aggregate Certificate Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon the Certificate. The Pooling and Servicing Agreement also permits
the amendment thereof, in certain circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons,
in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of the same Class in authorized denominations as requested by
the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent,
the Master Servicer, the Special Servicer and the Certificate Registrar and
any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature
of information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of
the Pooling and Servicing Agreement or (iii) the termination of the Trust
pursuant to Section 10.1(c) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The parties designated in the Pooling and Servicing Agreement
may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and
of all administrative expenses associated with the Trust, any remaining assets
of the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------
IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
------------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:
------------------------------ ------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account of
account number
or, if mailed by check, to . Statements
should be mailed to . This information is provided by
assignee named above, or , as its agent.
EXHIBIT A-3
[FORM OF CLASS A-3 CERTIFICATE]
THIS CLASS A-3 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT,
THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS A-3 CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 5.61% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS A-3 CERTIFICATES AS OF THE TRUSTEE: LASALLE BANK NATIONAL
CLOSING DATE: $320,234,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS A-3 FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$320,234,000 CUSIP XX. 00000X XX 0
Xx. X-0-0
CLASS A-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class A-3 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class A-3 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will
evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information
with respect to the interests, rights, benefits, obligations, proceeds, and
duties evidenced hereby and the rights, duties and obligations of the Trustee
and the Paying Agent. This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms
specified in this Certificate and terms specified in the Pooling and Servicing
Agreement, the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate
will be made out of the Available Distribution Amount, to the extent and
subject to the limitations set forth in the Pooling and Servicing Agreement,
on the 15th day of each month or, if such 15th day is not a Business Day, the
next succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Pass-Through
Rate on the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata
share of the amount to be distributed on the Certificates of this Class as of
such Distribution Date, with a final distribution to be made upon retirement
of this Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to
a nominee of The Depository Trust Company ("DTC") will be made by or on behalf
of the Paying Agent by wire transfer in immediately available funds to an
account specified in the request of such Certificateholder. All distributions
under the Pooling and Servicing Agreement to Certificateholders will be made
by wire transfer in immediately available funds to the account specified by
the Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by
check mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a
notice of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain
exceptions therein provided, the amendment thereof and the modification of the
rights and obligations of the Certificateholders under the Pooling and
Servicing Agreement at any time by the parties thereto with the consent of the
Holders of not less than 51% of the Aggregate Certificate Balance of the
Certificates then outstanding, as specified in the Pooling and Servicing
Agreement. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon the Certificate. The Pooling and Servicing Agreement also permits
the amendment thereof, in certain circumstances, without the consent of the
Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new
Certificates of the same Class in authorized denominations will be issued to
the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Certificates are issuable in fully registered form only, without coupons,
in minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for
new Certificates of the same Class in authorized denominations as requested by
the Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate
is registered in the name of Cede & Co. or in such other name as is requested
by an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent,
the Master Servicer, the Special Servicer and the Certificate Registrar and
any of their agents may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and neither the Depositor,
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer, the
Special Servicer, the Certificate Registrar nor any such agents shall be
affected by notice to the contrary.
The obligations and responsibilities of the Trustee and the
Paying Agent created hereby (other than the obligation of the Paying Agent to
make payments to the Certificateholders as set forth in Section 10.2 of the
Pooling and Servicing Agreement and other than the obligations in the nature
of information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of
the Pooling and Servicing Agreement or (iii) the termination of the Trust
pursuant to Section 10.1(c) of the Pooling and Servicing Agreement; provided
that in no event shall the Trust continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St. Xxxxx, living on
the date hereof. The parties designated in the Pooling and Servicing Agreement
may exercise their option to purchase the Mortgage Loans and any other
property remaining in the Trust and cause the termination of the Trust in
accordance with the requirements set forth in the Pooling and Servicing
Agreement. Upon termination of the Trust and payment of the Certificates and
of all administrative expenses associated with the Trust, any remaining assets
of the Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under
the Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act..........................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
| | IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
------------------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange.
Notarized or witnessed signatures are
not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-4
[FORM OF CLASS B CERTIFICATE]
THIS CLASS B CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS B CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE 5.80% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS B CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $24,819,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS B FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$24,819,000 CUSIP XX. 00000X XX 0
Xx. X-0
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class B Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
---------------------------------------------
--------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
--------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
--------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must
be guaranteed by a commercial bank or
trust company or by a member firm of the
New York Stock Exchange or another
national securities exchange. Notarized
or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-5
[FORM OF CLASS C CERTIFICATE]
THIS CLASS C CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE UNDERWRITERS, THE TRUSTEE, THE FISCAL AGENT, THE
CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE SPECIAL
SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL
NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS C CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.05% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS C CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $24,819,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS C FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$24,819,000 CUSIP XX. 00000X XX 0
Xx. X-0
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class C Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4 and are issued in the Classes specified in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
------------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or
by a member firm of the New York
Stock Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-6
[FORM OF CLASS D CERTIFICATE]
THIS CLASS D CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS D CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.17% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS D CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $9,025,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS D FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$9,025,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GP 7
EXCHANGES ATTACHED)
No. D-1
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class D Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class D Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| DENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
------------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or
by a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-7
[FORM OF CLASS E CERTIFICATE]
THIS CLASS E CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS E CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.47% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS E CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $20,307,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS E FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$20,307,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GQ 5
EXCHANGES ATTACHED)
No. E-1
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class E Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class E Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-8
[FORM OF CLASS F CERTIFICATE]
THIS CLASS F CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS F CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS
AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.91% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS F CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $9,025,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS F FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$9,025,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GR 3
EXCHANGES ATTACHED)
No. F-1
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class F Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class F Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-9
[FORM OF CLASS G CERTIFICATE]
THIS CLASS G CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS G CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS G CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $9,025,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS G FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$9,025,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GS 1
EXCHANGES ATTACHED)
No. G-1
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class G Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-10
[FORM OF CLASS H CERTIFICATE]
THIS CLASS H CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS H CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS H CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $9,025,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS H FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$9,025,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GT 9
EXCHANGES ATTACHED)
No. H-1
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class H Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Certificate Balance
of this Certificate specified on the face hereof by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of _______________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-11
[FORM OF CLASS J CERTIFICATE]
THIS CLASS J CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS J CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT,
AGGREGATE CERTIFICATE BALANCE OF THE LLC
CLASS J CERTIFICATES AS OF THE CLOSING
DATE: $6,769,000 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS J
CERTIFICATE AS OF THE CLOSING DATE: FISCAL AGENT: ABN AMRO BANK N.V.
$6,769,000 (SUBJECT TO SCHEDULE OF
EXCHANGES ATTACHED) CUSIP XX. 00000X XX 0
Xx. X-0
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class J Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-12
[FORM OF CLASS K CERTIFICATE]
THIS CLASS K CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS K CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS K CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $4,513,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS K FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$4,513,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GV 4
EXCHANGES ATTACHED)
No. K-1
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class K Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class K
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-TOP4 and are issued in the Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national securities
exchange. Notarized or witnessed
signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ________________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-13
[FORM OF CLASS L CERTIFICATE]
THIS CLASS L CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS L CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS L CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $4,512,000 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS L FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$4,512,000 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GW 2
EXCHANGES ATTACHED)
No. L-1
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class L Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this Certificate
specified on the face hereof by the aggregate initial Certificate Balance of the
Class L
Certificates. The Certificates are designated as the Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-TOP4 and are issued in the Classes as specifically set forth in the Pooling
and Servicing Agreement. The Certificates will evidence in the aggregate 100% of
the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from
the Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
|---------------------------|
|---------------------------| IDENTIFYING NUMBER OF ASSIGNEE
|---------------------------|
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED
The signature must be guaranteed by a
commercial bank or trust company or by
a member firm of the New York Stock
Exchange or another national
securities exchange. Notarized or
witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of ________________
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-14
[FORM OF CLASS M CERTIFICATE]
THIS CLASS M CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS M CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS M CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $1,066,704 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS M FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$1,066,704 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GX 0
EXCHANGES ATTACHED)
No. M-1
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class M Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), Bear Xxxxxxx Commercial Mortgage Securities
Inc. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Fiscal
Agent, the Paying Agent, the Certificate Registrar, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and reference is made to that Agreement for information with respect
to the interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee and the Paying
Agent. This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will be made
out of the Available Distribution Amount, to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the 15th day of
each month or, if such 15th day is not a Business Day, the next succeeding
Business Day (a "Distribution Date") commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"). All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by the
Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the Mortgage
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth in
the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
---------------------------IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-15
[FORM OF CLASS N CERTIFICATE]
THIS CLASS N CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE SELLERS, THE DEPOSITOR, THE INITIAL PURCHASERS, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THE INITIAL CERTIFICATE BALANCE HEREOF IS AS SET FORTH HEREIN, REDUCED OR
INCREASED AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS,
REALIZED LOSSES AND CERTAIN EXPENSE LOSSES ON THE CERTIFICATES ALLOCABLE TO THIS
CLASS N CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE
MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER
EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 6.00% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 SPECIAL SERVICER: GMAC COMMERCIAL
MORTGAGE CORPORATION
CUT-OFF DATE: NOVEMBER 1, 2001
PAYING AGENT: XXXXX FARGO BANK
CLOSING DATE: NOVEMBER 8, 2001 MINNESOTA, NATIONAL ASSOCIATION
FIRST DISTRIBUTION DATE: DECEMBER 17, PRIMARY SERVICERS: XXXX XXXXXXX
2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
AGGREGATE CERTIFICATE BALANCE OF THE
CLASS N CERTIFICATES AS OF THE CLOSING TRUSTEE: LASALLE BANK NATIONAL
DATE: $10,215,586 ASSOCIATION
CERTIFICATE BALANCE OF THIS CLASS N FISCAL AGENT: ABN AMRO BANK N.V.
CERTIFICATE AS OF THE CLOSING DATE:
$10,215,586 (SUBJECT TO SCHEDULE OF CUSIP NO. 07383F GY 8
EXCHANGES ATTACHED)
No. N-1
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class N Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor", which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the quotient expressed as a
percentage obtained by dividing the Certificate Balance of this
Certificate specified on the face hereof by the aggregate initial Certificate
Balance of the Class N Certificates. The Certificates are designated as the Bear
Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series 2001-TOP4 and are issued in the Classes as specifically set
forth in the Pooling and Servicing Agreement. The Certificates will evidence in
the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of principal of and interest on this Certificate will
be made out of the Available Distribution Amount, to the extent and subject to
the limitations set forth in the Pooling and Servicing Agreement, on the 15th
day of each month or, if such 15th day is not a Business Day, the next
succeeding Business Day (a "Distribution Date") commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"). All
sums distributable on this Certificate are payable in the coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate on
the Certificate Balance of this Certificate immediately prior to each
Distribution Date. Principal and interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Certificates are issuable in fully registered form only, without coupons, in
minimum denominations specified in the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ____ ___________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF EXCHANGES OF GLOBAL CERTIFICATES
The following exchanges of a part of this Global Certificate have been made:
EXHIBIT A-16
[FORM OF CLASS R-I CERTIFICATE]
THIS CLASS R-I CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER
AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE
AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING AGREEMENT AND ALL
RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE
UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR
INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS
A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC,
A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL
UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED
IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF
THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511
OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR
TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO
AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR
RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY
CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY
POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES
WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF
TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-I CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
PERCENTAGE INTEREST OF THIS CLASS R-I SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK
AS OF NOVEMBER 1, 2001 MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2001 PRIMARY SERVICERS: XXXX XXXXXXX
REAL ESTATE FINANCE, INC. AND
CLOSING DATE: NOVEMBER 8, 2001 PRINCIPAL CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: DECEMBER 17, TRUSTEE: LASALLE BANK NATIONAL
2001 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-I-1
CLASS R-I CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-I Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-I Certificates specified on the face hereof. The Certificates are designated
as Bear Xxxxxxx Commercial Mortgage Securities Inc.Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-17
[FORM OF CLASS R-II CERTIFICATE]
THIS CLASS R-II CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-II CERTIFICATE MAY BE MADE
ONLY IF THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE
REGISTRAR TO THE EFFECT THAT (1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS
OF THE POOLING AND SERVICING AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE
FACE HEREOF, (2) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE
FOREGOING (OTHER THAN AN INSTRUMENTALITY WHICH IS A CORPORATION IF ALL OF ITS
ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT FOR FHLMC, A MAJORITY OF ITS BOARD OF
DIRECTORS IS NOT SELECTED BY ANY SUCH GOVERNMENTAL UNIT), (B) AN ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE ON
UNRELATED BUSINESS TAXABLE INCOME), (C) A RURAL ELECTRIC OR TELEPHONE
COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE (ANY SUCH PERSON DESCRIBED IN
THE FOREGOING CLAUSES (A), (B) OR (C) BEING HEREINAFTER REFERRED TO AS A
"DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS NOT A CITIZEN OF OR RESIDENT
OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR
ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM SOURCES WITHOUT THE
UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT OF TRADE OR BUSINESS IN
THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER REFERRED TO AS A "UNITED
STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED
STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER IS TO ENABLE THE TRANSFEROR
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX. NOTWITHSTANDING THE REGISTRATION
IN THE CERTIFICATE REGISTER OF ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
CLASS R-I CERTIFICATE TO A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES
PERSON OR AN AGENT OF A DISQUALIFIED ORGANIZATION OR A NON-UNITED STATES PERSON,
OR TO ANY OTHER PROHIBITED TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING
AGREEMENT, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT
WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY
PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON THIS CERTIFICATE. EACH HOLDER OF A CLASS R-I CERTIFICATE BY ACCEPTANCE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
PERCENTAGE INTEREST OF THIS CLASS R-II SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK
AS OF NOVEMBER 1, 2001 MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2001 PRIMARY SERVICERS: XXXX XXXXXXX
REAL ESTATE FINANCE, INC. AND
CLOSING DATE: NOVEMBER 8, 2001 PRINCIPAL CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: DECEMBER 17, TRUSTEE: LASALLE BANK NATIONAL
2001 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-II-1
CLASS R-II CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-II Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-II Certificates specified on the face hereof. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc.Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-II CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-18
[FORM OF CLASS R-III CERTIFICATE]
THIS CLASS R-III CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS THE
"RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THIS CERTIFICATE MAY NOT BE TRANSFERRED TO A
NON-UNITED STATES PERSON.
THIS CERTIFICATE MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED TO
"DISQUALIFIED ORGANIZATIONS" WITHIN THE MEANING OF THE CODE.
NO TRANSFER OF THIS CERTIFICATE TO A RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT THAT IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE
ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
A SALE, TRANSFER OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE MAY BE
MADE ONLY IF THE PROPOSED TRANSFEREE
PROVIDES A TRANSFER AFFIDAVIT TO THE CERTIFICATE REGISTRAR TO THE EFFECT THAT
(1) SUCH TRANSFEREE AGREES TO BE BOUND BY THE TERMS OF THE POOLING AND SERVICING
AGREEMENT AND ALL RESTRICTIONS SET FORTH ON THE FACE HEREOF, (2) SUCH TRANSFEREE
IS NOT (A) THE UNITED STATES, ANY STATE OR POLITICAL SUBDIVISION THEREOF, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND, EXCEPT
FOR FHLMC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY ANY SUCH
GOVERNMENTAL UNIT), (B) AN ORGANIZATION (OTHER THAN CERTAIN FARMERS'
COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE) WHICH IS EXEMPT FROM THE TAX
IMPOSED BY CHAPTER 1 OF THE CODE (UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX
IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE INCOME), (C) A
RURAL ELECTRIC OR TELEPHONE COOPERATIVE DESCRIBED IN SECTION 1381 OF THE CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A), (B) OR (C) BEING
HEREINAFTER REFERRED TO AS A "DISQUALIFIED ORGANIZATION"), (D) A PERSON THAT IS
NOT A CITIZEN OF OR RESIDENT OF THE UNITED STATES, A CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN, OR UNDER THE LAWS OF, THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF, OR AN ESTATE OR TRUST WHOSE INCOME FROM
SOURCES WITHOUT THE UNITED STATES IS INCLUDABLE IN GROSS INCOME FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES REGARDLESS OF ITS CONNECTION WITH THE CONDUCT
OF TRADE OR BUSINESS IN THE UNITED STATES (ANY SUCH PERSON BEING HEREINAFTER
REFERRED TO AS A "UNITED STATES PERSON") OR (E) AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, AND (3) NO PURPOSE OF SUCH TRANSFER
IS TO ENABLE THE TRANSFEROR TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CLASS R-III CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON OR AN AGENT OF A DISQUALIFIED
ORGANIZATION OR A NON-UNITED STATES PERSON, OR TO ANY OTHER PROHIBITED
TRANSFEREE AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT, SUCH REGISTRATION
SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON
SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
EACH HOLDER OF A CLASS R-III CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS PARAGRAPH.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
PERCENTAGE INTEREST OF THIS CLASS R-III SPECIAL SERVICER: GMAC COMMERCIAL
CERTIFICATE: 100% MORTGAGE CORPORATION
DATE OF POOLING AND SERVICING AGREEMENT: PAYING AGENT: XXXXX FARGO BANK
AS OF NOVEMBER 1, 2001 MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2001 PRIMARY SERVICERS: XXXX XXXXXXX
REAL ESTATE FINANCE, INC. AND
CLOSING DATE: NOVEMBER 8, 2001 PRINCIPAL CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: DECEMBER 17, TRUSTEE: LASALLE BANK NATIONAL
2001 ASSOCIATION
MASTER SERVICER: XXXXX FARGO BANK, FISCAL AGENT: ABN AMRO BANK N.V.
NATIONAL ASSOCIATION
NO. R-III-1
CLASS R-III CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT Bear Xxxxxxx Securities Corp. is the registered owner of the
interest evidenced by this Certificate in the Class R-III Certificates issued by
the Trust created pursuant to the Pooling and Servicing Agreement, dated as
specified above (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx
Commercial Mortgage Securities Inc. (hereinafter called the "Depositor", which
term includes any successor entity under the Pooling and Servicing Agreement),
the Trustee, the Fiscal Agent, the Paying Agent, the Master Servicer and the
Special Servicer, a summary of certain of the pertinent provisions of which is
set forth hereafter. The Trust consists primarily of the Mortgage Loans, such
amounts as shall from time to time be held in the Certificate Account and
Distribution Account, the Insurance Policies and any REO Properties. To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing the Percentage Interest in the Class
R-III Certificates specified on the face hereof. The Certificates are designated
as the Bear Xxxxxxx Commercial Mortgage Securities Inc.Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
The Holder of this Certificate shall be entitled to receive only
certain amounts set forth in the Pooling and Servicing Agreement, including a
distribution upon termination of the Pooling and Servicing Agreement and the
related REMIC created thereby of the amounts which remain on deposit in the
Distribution Account after payment to the holders of all other Certificates of
all amounts set forth in the Pooling and Servicing Agreement. Distributions on
this Certificate will be made out of the Available Distribution Amount, to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the 15th day of each month or, if such 15th day is not a Business
Day, the next succeeding Business Day (a "Distribution Date") commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"). All sums distributable on this Certificate are payable in the coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Realized Losses, Expense Losses and interest shortfalls on the
Mortgage Loans allocated to any Class of Certificates will be allocated pro rata
among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor,
if such Certificateholder will have provided the Paying Agent with wiring
instructions on or prior to the related Record Date or otherwise by check mailed
to such Certificateholder. Notwithstanding the above, the final distribution on
any Certificate will be made only upon presentation and surrender of such
Certificate at the location that will be specified in a notice of the pendency
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
The Residual Certificates will be issued in fully registered,
certificated form in minimum percentage interests of 10% and in multiples of 10%
in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the
later of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R-III CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to ______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-19
[FORM OF CLASS X-1 CERTIFICATE]
THIS CLASS X-1 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-1 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 1.08% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS
X-1 CERTIFICATE: $902,516,290 SPECIAL SERVICER: WELL FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 PAYING AGENT: XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2001
PRIMARY SERVICERS: XXXX XXXXXXX
CLOSING DATE: NOVEMBER 8, 2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: DECEMBER 17, 2001
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE NOTIONAL AMOUNT OF THE CLASS ASSOCIATION
X-1 CERTIFICATES AS OF THE CLOSING DATE:
$902,516,290 (SUBJECT TO SCHEDULE OF FISCAL AGENT: ABN AMRO BANK N.V.
EXCHANGES ATTACHED)
CUSIP NO. 07383F GM 4
No. X-1-1
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-1 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-1 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the 15th day of each month
or, if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-1 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT A-20
[FORM OF CLASS X-2 CERTIFICATE]
THIS CLASS X-2 CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST
IN THE SELLERS, THE DEPOSITOR, THE PLACEMENT AGENT, THE TRUSTEE, THE FISCAL
AGENT, THE CERTIFICATE REGISTRAR, THE PAYING AGENT, THE MASTER SERVICER, THE
SPECIAL SERVICER, THE PRIMARY SERVICERS OR ANY OF THEIR RESPECTIVE AFFILIATES,
AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
IF THE TRANSFEREE OF THIS CERTIFICATE IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE
FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, OR ANY PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR USING THE ASSETS
OF SUCH PLAN TO ACQUIRE OR HOLD THIS CERTIFICATE, SUCH PLAN OR SUCH PERSON MUST
BE AN ACCREDITED INVESTOR.
THE INITIAL NOTIONAL AMOUNT HEREOF IS AS SET FORTH HEREIN, REDUCED OR INCREASED
AS SET FORTH IN THE SCHEDULE OF EXCHANGES ATTACHED HERETO.
THE PORTION OF THE NOTIONAL AMOUNT OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL PAYMENTS, REALIZED
LOSSES AND CERTAIN EXPENSE LOSSES ON THE MORTGAGE LOANS ALLOCABLE TO THE
NOTIONAL AMOUNT OF THIS CLASS X-2 CERTIFICATE. ACCORDINGLY, THE NOTIONAL AMOUNT
OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS
CERTIFICATE MAY ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE PAYING
AGENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4
INITIAL PASS-THROUGH RATE: 1.61% MASTER SERVICER: XXXXX FARGO BANK,
NATIONAL ASSOCIATION
INITIAL NOTIONAL AMOUNT OF THIS CLASS
X-2 CERTIFICATE: $420,779,000 SPECIAL SERVICER: WELL FARGO BANK,
NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT:
AS OF NOVEMBER 1, 2001 PAYING AGENT: XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION
CUT-OFF DATE: NOVEMBER 1, 2001
PRIMARY SERVICERS: XXXX XXXXXXX
CLOSING DATE: NOVEMBER 8, 2001 REAL ESTATE FINANCE, INC. AND
PRINCIPAL CAPITAL MANAGEMENT, LLC
FIRST DISTRIBUTION DATE: DECEMBER 17, 2001
TRUSTEE: LASALLE BANK NATIONAL
AGGREGATE NOTIONAL AMOUNT OF THE CLASS ASSOCIATION
X-2 CERTIFICATES AS OF THE CLOSING DATE:
$420,779,000 (SUBJECT TO SCHEDULE OF FISCAL AGENT: ABN AMRO BANK N.V.
EXCHANGES ATTACHED)
CUSIP XX. 00000X XX 0
Xx. X-0-0
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust, consisting primarily of a
pool of commercial and multifamily mortgage loans (the "Mortgage Loans") and
certain other property, formed and sold by
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
THIS CERTIFIES THAT CEDE & CO. is the registered owner of the interest evidenced
by this Certificate in the Class X-2 Certificates issued by the Trust created
pursuant to the Pooling and Servicing Agreement, dated as specified above (the
"Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage
Securities Inc. (hereinafter called the "Depositor," which term includes any
successor entity under the Pooling and Servicing Agreement), the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar, the Master Servicer
and the Special Servicer, a summary of certain of the pertinent provisions of
which is set forth hereafter. The Trust consists primarily of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and Distribution Account, the Insurance Policies and any REO Properties.
To the extent not defined herein, the capitalized terms used herein have the
meanings assigned in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of Certificates
designated as Certificates of the series specified on the face hereof (herein
called the "Certificates") and representing an interest in the Class of
Certificates specified on the face hereof equal to the
quotient expressed as a percentage obtained by dividing the Notional Amount of
this Certificate specified on the face hereof by the initial aggregate Notional
Amount of the Class X-2 Certificates. The Certificates are designated as the
Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial Mortgage
Pass-Through Certificates, Series 2001-TOP4 and are issued in the Classes
specified in the Pooling and Servicing Agreement. The Certificates will evidence
in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that Agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee and the
Paying Agent. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the
Certificateholder by virtue of the acceptance hereof assents and by which the
Certificateholder is bound. In the case of any conflict between terms specified
in this Certificate and terms specified in the Pooling and Servicing Agreement,
the terms of the Pooling and Servicing Agreement shall govern.
Distributions of interest on this Certificate will be made out of
the Available Distribution Amount, to the extent and subject to the limitations
set forth in the Pooling and Servicing Agreement, on the 15th day of each month
or, if such 15th day is not a Business Day, the next succeeding Business Day (a
"Distribution Date") commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (the "Record Date"). All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each year
consisted of 360 days and each month consisted of 30 days) during the Interest
Accrual Period relating to such Distribution Date at the Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
each Distribution Date. Interest allocated to this Certificate on any
Distribution Date will be in an amount due to this Certificate's pro rata share
of the amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Unless the certificate of authentication hereon has been executed by
the Authenticating Agent, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement or be valid
for any purpose.
Realized Losses and interest shortfalls on the Mortgage Loans shall
be allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All Realized Losses and
interest shortfalls on the Mortgage Loans allocated to any Class of Certificates
will be allocated pro rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth in the Pooling and Servicing Agreement. As provided in
the Pooling and Servicing Agreement, withdrawals from the Certificate Account
shall be made from time to time for purposes other than distributions to
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust.
All distributions under the Pooling and Servicing Agreement to a
nominee of The Depository Trust Company ("DTC") will be made by or on behalf of
the Paying Agent by wire transfer in immediately available funds to an account
specified in the request of such Certificateholder. All distributions under the
Pooling and Servicing Agreement to Certificateholders will be made by wire
transfer in immediately available funds to the account specified by the
Certificateholder, at a bank or other entity having appropriate facilities
therefor, if such Certificateholder will have provided the Paying Agent with
wiring instructions on or prior to the related Record Date or otherwise by check
mailed to such Certificateholder. Notwithstanding the above, the final
distribution on any Certificate will be made only upon presentation and
surrender of such Certificate at the location that will be specified in a notice
of the pendency of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions
therein provided, the amendment thereof and the modification of the rights and
obligations of the Certificateholders under the Pooling and Servicing Agreement
at any time by the parties thereto with the consent of the Holders of not less
than 51% of the Aggregate Certificate Balance of the Certificates then
outstanding, as specified in the Pooling and Servicing Agreement. Any such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon the Certificate. The
Pooling and Servicing Agreement also permits the amendment thereof, in certain
circumstances, without the consent of the Holders of any of the Certificates.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the Corporate Trust Office of the Certificate
Registrar, duly endorsed by, or accompanied by an assignment in the form below
or other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations will be issued to the designated transferee or
transferees.
Subject to the terms of the Pooling and Servicing Agreement, the
Class X-2 Certificates will be issued in denominations of $100,000 initial
Notional Amount and in any whole dollar denomination in excess thereof.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class in authorized denominations as requested by the
Holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book entry facilities of DTC.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
Master Servicer, the Special Servicer and the Certificate Registrar and any of
their agents may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and neither the Depositor, the Trustee,
the Fiscal Agent, the Paying Agent, the Master Servicer, the Special Servicer,
the Certificate Registrar nor any such agents shall be affected by notice to the
contrary.
The obligations and responsibilities of the Trustee and the Paying
Agent created hereby (other than the obligation of the Paying Agent to make
payments to the Certificateholders as set forth in Section 10.2 of the Pooling
and Servicing Agreement and other than the obligations in the nature of
information or tax reporting) shall terminate on the earliest of (i) the later
of (A) the final payment or other liquidation of the last Mortgage Loan
remaining in the Trust and (B) the disposition of all REO Property or (ii) the
sale of the property held by the Trust in accordance with Section 10.1(b) of the
Pooling and Servicing Agreement or (iii) the termination of the Trust pursuant
to Section 10.1(c) of the Pooling and Servicing Agreement; provided that in no
event shall the Trust continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The parties designated in the Pooling and Servicing Agreement may
exercise their option to purchase the Mortgage Loans and any other property
remaining in the Trust and cause the termination of the Trust in accordance with
the requirements set forth in the Pooling and Servicing Agreement. Upon
termination of the Trust and payment of the Certificates and of all
administrative expenses associated with the Trust, any remaining assets of the
Trust shall be distributed to the holders of the Residual Certificates.
The Certificate Registrar has executed this Certificate under the
Pooling and Servicing Agreement.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By: ______________________________________
AUTHORIZED SIGNATORY
Dated: November 8, 2001
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
AUTHENTICATING AGENT
By: ______________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT.............Custodian
TEN ENT - as tenants by the (Cust)
entireties Under Uniform Gifts to Minors
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in Act.......................
common (State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
--------------------------- IDENTIFYING NUMBER OF ASSIGNEE
---------------------------
---------------------------
-----------------------------------------------------
------------------------------------------------------------------------------
Please print or typewrite name and address of assignee
------------------------------------------------------------------------------
the within Certificate and does hereby or irrevocably constitute and appoint
------------------------------------------------------------------------------
to transfer the said Certificate in the Certificate Register of the within-named
Trust, with full power of substitution in the premises.
Dated:_________________________ _______________________________
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of this Certificate in every
particular without alteration or
enlargement or any change whatever.
-------------------------------
SIGNATURE GUARANTEED The signature must be guaranteed by a commercial bank or
trust company or by a member firm of the New York Stock Exchange or another
national securities exchange. Notarized or witnessed signatures are not
acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to_____________ for the account of
_________________________________________________ account number ______________
or, if mailed by check, to _______________________________________. Statements
should be mailed to ____________________. This information is provided by
assignee named above, or _______________________, as its agent.
EXHIBIT B-1
FORM OF INITIAL CERTIFICATION OF TRUSTEE
November __, 2001
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxx Xxxxxxx Real Estate Finance, Inc.
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx, T-52
Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear, Xxxxxxx Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4
-----------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
specified in clause (i) of the definition of "Mortgage File" are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan and (c) each Mortgage Note has
been endorsed as
provided in clause (i) of the definition of "Mortgage File" of the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any such
documents contained in each Mortgage File or any of the Mortgage Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein and not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement. This Certificate is subject in all respects to the terms of
said Pooling and Servicing Agreement.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: ______________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT B-2
FORM OF FINAL CERTIFICATION OF TRUSTEE
__________, 2001
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Principal Commercial Funding, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Xxxx Xxxxxxx Real Estate Finance, Inc.
Xxxx Xxxxxxx Place
000 Xxxxxxxxx Xxxxxx, T-52
Xxxx Xxxxxx Xxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Bear, Xxxxxxx Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Pooling and Servicing Agreement ("Pooling and Servicing Agreement")
relating to Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4
------------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provisions of Section 2.2 of the Pooling and
Servicing Agreement, the undersigned hereby certifies that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule and subject to the exceptions
noted in the schedule of exceptions attached hereto, that: (a) all documents
required to be included in the Mortgage File pursuant to clauses (i), (ii),
(iv), (v), (vi) and (viii) of the definition of "Mortgage File," and any
documents required to be included in the Mortgage File pursuant to all other
clauses of the definition of
"Mortgage File," to the extent known by a Responsible Officer of the Trustee to
be required pursuant to the Pooling and Servicing Agreement, are in its
possession, (b) such documents have been reviewed by it and have not been
materially mutilated, damaged, defaced, torn or otherwise physically altered,
and such documents relate to such Mortgage Loan, (c) based on its examination
and only as to the Mortgage Note and the Mortgage, the street address of the
Mortgaged Property and the name of the Mortgagor set forth in the Mortgage Loan
Schedule accurately reflects the information contained in the documents in the
Mortgage File, and (d) each Mortgage Note has been endorsed. The Trustee makes
no representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents contained in each Mortgage
File or any of the Trustee Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or suitability
of any such Mortgage Loan.
The Trustee acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans, the REMIC I Regular Interests, and the REMIC II Regular
Interests.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement. This
Certificate is qualified in all respects by the terms of said Pooling and
Servicing Agreement including but not limited to Section 2.2.
LASALLE BANK NATIONAL ASSOCIATION, as
Trustee
By: ______________________________________
Name:
Title:
SCHEDULE OF EXCEPTIONS
EXHIBIT C
FORM OF REQUEST FOR RELEASE
To: Lasalle Bank National Association, as Trustee
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Asset-Backed Securities Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2001-TOP4
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4
DATE:__________
In connection with the administration of the Mortgage Loans held by
you as Trustee under the Pooling and Servicing Agreement dated as of November 1,
2001 by and among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, Lasalle Bank National
Association, as Trustee, Xxxxx Fargo Bank Minnesota, National Association, as
Paying Agent and Certificate Registrar and ABN AMRO Bank N.V., as Fiscal Agent
(the "Pooling and Servicing Agreement"), the undersigned hereby requests a
release of the Trustee Mortgage File held by you as Trustee with respect to the
following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
_____ 1. Mortgage Loan paid in full.
(The [Master] [Special] Servicer hereby certifies that all
amounts received in connection with the Mortgage Loan have
been or will be, following the [Master] [Special] Servicer's
release of the Trustee Mortgage File, credited to the
Certificate Account or the Distribution Account pursuant to
the Pooling and Servicing Agreement.)
_____ 2. Mortgage Loan repurchased.
(The [Master] [Special] Servicer hereby certifies that the
Purchase Price has been credited to the Distribution Account
pursuant to the Pooling and Servicing Agreement.)
_____ 3. Mortgage Loan Defeased.
4. Mortgage Loan substituted.
(The [Master] [Special] Servicer hereby certifies that a
Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Trustee Mortgage File
pursuant to the Pooling and Servicing Agreement.)
_____ 5. The Mortgage Loan is being foreclosed.
_____ 6. Other. (Describe)
The undersigned acknowledges that the above Trustee Mortgage File
will be held by the undersigned in accordance with the provisions of the Pooling
and Servicing Agreement and will be returned to you, except if the Mortgage Loan
has been paid in full, repurchased or substituted for by a Qualifying Substitute
Mortgage Loan (in which case the Trustee Mortgage File will be retained by us
permanently), when no longer required by us for such purpose).
Capitalized terms used herein shall have the meanings ascribed to
them in the Pooling and Servicing Agreement.
[Name of [Master] [Special] Servicer]
By: ______________________________________
Name:
Title:
EXHIBIT D-1
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFERS OF DEFINITIVE PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ___ Certificates [having an initial Certificate Balance or Notional Amount
as of November 8, 2001 (the "Closing Date") of $__________] [evidencing a ____%
Percentage Interest in the related Class] (the "Transferred Certificates"). The
Transferred Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 2001,
among Bear Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the
"Depositor"), Xxxxx Fargo Bank, National Association, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, National Association, as
paying agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent.
All terms used herein and not otherwise defined shall have the meanings set
forth in the Pooling and Servicing Agreement. The Transferor hereby certifies,
represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
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 any 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 any 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 any 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, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the disposition of
any Transferred Certificate a violation of Section 5 of the Securities Act
or any state securities laws, or would require registration or
qualification of any Transferred Certificate pursuant to the Securities Act
or any state securities laws.
Very truly yours,
_________________________________________
(Transferor)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
EXHIBIT D-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[DATE]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial Certificate Principal Balance or
Notional Amount as of November 8, 2001 (the "Closing Date") of [$__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of November 1,
2001 (the "Pooling and Servicing Agreement"), among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as depositor (the "Depositor"), Xxxxx Fargo Bank,
National Association, as master servicer, GMAC Commercial Mortgage Corporation,
as special servicer, Lasalle Bank National Association, as trustee, Xxxxx Fargo
Bank Minnesota, as paying agent and certificate registrar and ABN AMRO Bank
N.V., as fiscal agent. All capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
of the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificates for its own
account or for the account of a Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (i) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the
resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement, (e) any credit enhancement
mechanism associated with the Transferred Certificates and (f) all related
matters that it has requested.
Very truly yours,
____________________________________________
(Transferee)
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ANNEX 1 TO EXHIBIT D-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate
in the case of a U.S. savings and loan association, and not
more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
______________________________________
______________________________________
______________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost
of those securities has been published, in which case the securities were valued
at market. Further, in determining such aggregate amount, the Transferee may
have included securities owned by subsidiaries of the Transferee, but only if
such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such subsidiaries are managed under the Transferee's
direction. However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
____________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
ANNEX 2 TO EXHIBIT D-2A
-----------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificates") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
Yes No
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificates
will constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:
Title:
IF AN ADVISER:
__________________________________________
Print Name of Transferee
Date:_____________________________________
EXHIBIT D-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE
PRIVATELY OFFERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
Sixth and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4 (the
"Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates [having an initial Certificate
Principal Balance as of November 8, 2001 (the "Closing Date") of
$__________][evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of November 1, 2001 (the "Pooling and Servicing Agreement"), among Bear
Xxxxxxx Commercial Mortgage Securities Inc., as depositor (the "Depositor"),
Xxxxx Fargo Bank, National Association, as master servicer, GMAC Commercial
Mortgage Corporation, as special servicer, Lasalle Bank National Association, as
trustee, Xxxxx Fargo Bank Minnesota, National Association, as paying agent and
certificate registrar and ABN AMRO Bank N.V., as fiscal agent. All capitalized
terms used but not otherwise defined herein shall have the respective meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Class of
Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i) registered
pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either: (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit D-1 to the Pooling and Servicing
Agreement and a certificate from such Certificateholder's prospective transferee
substantially in the form attached either as Exhibit D-2A or as Exhibit D-2B to
the Pooling and Servicing Agreement; or (C) an opinion of counsel satisfactory
to the Certificate Registrar with respect to the availability of such exemption
from registration under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the facts
surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the provisions of
Section 3.3 of the Pooling and Servicing Agreement, which provisions it has
carefully reviewed.
4. Transferee understands that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.3 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED IN
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Transferred
Certificate, any interest in any Transferred Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Transferred Certificate, any
interest in any 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 any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action with respect to any Transferred Certificate, any interest in any
Transferred Certificate or any other similar security, which (in the case of any
of the acts described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act, would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities law or would require registration
or qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Transferred Certificate, any interest in any Transferred Certificate or any
other similar security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
7. The Transferee is an "accredited investor" as defined in any
of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Transferred Certificate; the Transferee has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
_________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT D-3A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of November 8, 2001 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 2001, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as master
servicer, GMAC Commercial Mortgage Corporation, as special servicer, Lasalle
Bank National Association, as trustee, Xxxxx Fargo Bank Minnesota, as paying
agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, and for the benefit of the Depositor, the Certificate
Registrar and the Trustee, that:
1. The Transferee is acquiring the Transferred Certificate for its
own account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) none of the Depositor,
the Trustee or the Certificate Registrar is obligated so to register or qualify
the Certificates and (c) no interest in the Certificates may be sold or
transferred unless it is (i) registered pursuant to the Securities Act and
registered or qualified pursuant to any applicable state securities laws or (ii)
sold or transferred in transactions which are exempt from such registration and
qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate
will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT 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 TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (b) solicited any offer to buy or accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate, any interest in any Certificate or any similar
security.
6. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
7. The Transferee is an institutional "accredited investor" as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment in the Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT D-3B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN
BOOK-ENTRY PRIVATELY OFFERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4, Class __
(the "Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_____________ ________ (the "Transferor") to ______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance or notional amount as of November 8, 2001 (the "Closing Date")
of $__________. The Certificates were issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 2001, among Bear Xxxxxxx Commercial Mortgage Securities Inc., as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as master
servicer, GMAC Commercial Mortgage Corporation, as special servicer, Lasalle
Bank National Association, as trustee, Xxxxx Fargo Bank Minnesota, National
Association, as paying agent and certificate registrar and ABN AMRO Bank N.V.,
as fiscal agent. All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, and for the benefit of the Depositor,
the Certificate Registrar and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act"), and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Certificate for its own account or
for the account of a qualified institutional buyer, and understands that such
Certificate or any interest therein may be resold, pledged or transferred only
(i) to a person reasonably believed to be a qualified institutional buyer that
purchases for its own account or for the account of a qualified institutional
buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificate belongs have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or the
Certificate Registrar is obligated so to register or qualify the Certificates
and (c) no interest in the Certificates may be sold or transferred unless it is
(i) registered pursuant to the Securities Act and registered or qualified
pursuant to any applicable state securities laws or
(ii) sold or transferred in transactions which are exempt from such registration
and qualification and the Certificate Owner desiring to effect such transfer has
received either (A) a certification from such Certificate Owner's prospective
transferee (substantially in the form attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer or (B) an opinion of
counsel with respect to the availability of such exemption, together with copies
of the certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except in
compliance with the provisions of Section 3.3 of the Pooling and Servicing
Agreement, which provisions it has carefully reviewed.
4. Transferee understands that the Transferred Certificate
will bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE OR ANY INTEREST THEREIN WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT 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 TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF,
AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED IN SECTION 3.3 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
ANNEX 1 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and [name of Certificate Registrar] as Certificate
Registrar, with respect to the commercial mortgage pass-through certificate
being transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A"), because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended.
___ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any State, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
State or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of
sale for a foreign bank or equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a State or Federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a
date not more than 16 months preceding the date of sale of
the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale for a foreign savings and loan association or
equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered
pursuant to Section 15 of the Securities Exchange Act of
1934, as amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
State, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any
agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement income
Security Act of 1974, as amended.
___ Investment Advisor. The Transferee is an investment
advisor registered under the Investment Advisers Act of
1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
______________________________________
______________________________________
______________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee, if
the Transferee is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities
owned but subject to a repurchase agreement and (vii) currency, interest rate
and commodity swaps. For purposes of determining the aggregate amount of
securities owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the Transferee
used the cost of such securities to the Transferee, unless the Transferee
reports its securities holdings in its financial
statements on the basis of their market value, and no current information with
respect to the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee's direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ____ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
__________________________________________
Print Name of Transferee
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Date:_____________________________________
ANNEX 2 TO EXHIBIT D-3B
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor"), and for the benefit of the Depositor, the Certificate
Registrar and the Trustee, with respect to the commercial mortgage pass-through
certificate being transferred (the "Transferred Certificate") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive officer
of the entity purchasing the Transferred Certificate (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered under
the Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part of the
Transferee's Family of Investment Companies, (ii) bank deposit notes and
certificates of deposit, (iii) loan participations, (iv) repurchase agreements,
(v) securities owned but subject to a repurchase agreement and (vi) currency,
interest rate and commodity swaps. For purposes of determining the aggregate
amount of securities owned and/or invested on a discretionary basis by the
Transferee, or owned by the Transferee's Family of Investment Companies, the
securities referred to in this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
___ ____ Will the Transferee be purchasing the Transferred Certificate
Yes No only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice, the Transferee's purchase of the Transferred Certificate will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
__________________________________________
Print Name of Transferee or Adviser
By:_______________________________________
Name:_____________________________________
Title:____________________________________
IF AN ADVISER:
Print Name of Transferee
Date:_____________________________________
EXHIBIT E-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF REMIC RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of Bear Xxxxxxx Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2001-TOP4, Class [R-I] [R-II] [R-III], evidencing a ____% Percentage Interest in
such Class (the "Residual Certificates")), a ________________ duly organized and
validly existing under the laws of ____________________, on behalf of which
he/she makes this affidavit. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement as amended and restated pursuant to which the Residual
Certificates were issued (the "Pooling and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted Transferee,
on the agent; (iii) that the Person otherwise liable for the tax shall be
relieved of liability for the tax if the transferee furnishes to such Person an
affidavit that the transferee is a Permitted Transferee and, at the time of
transfer, such Person does not have actual knowledge that the affidavit is
false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due
with respect to the income on such residual interest, unless no significant
purpose of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through
entity" holding the Residual Certificates if at any time during the taxable year
of the pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not
register any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to constitute
a reasonable arrangement to ensure that the Residual Certificate will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is __________.
8. The Transferee has reviewed the provisions of Section 3.3(e) of
the Pooling and Servicing Agreement, a description of which provisions is set
forth in the Residual Certificates (in particular, clause (ii)(F) of Section
3.3(e) which authorizes the Paying Agent or the Trustee to deliver payments on
the Residual Certificate to a Person other than the Transferee and clause
(ii)(G) of Section 3.3(e) which authorizes the Trustee to negotiate a mandatory
sale of the Residual Certificates, in either case, in the event that the
Transferee holds such Residual Certificates in violation of Section 3.3(e)); and
the Transferee expressly agrees to be bound by and to comply with such
provisions.
9. No purpose of the Transferee relating to its purchase or any sale
of the Residual Certificates is or will be to impede the assessment or
collection of any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it
makes of the Residual Certificates, deliver to the Certificate Registrar a
representation letter substantially in the form of Exhibit E-2 to the Pooling
and Servicing Agreement in which it will represent and warrant, among other
things, that it is not transferring the Residual Certificates to impede the
assessment or collection of any tax and that it has at the time of such transfer
conducted a reasonable investigation of the financial condition of the proposed
transferee as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and
has satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
13. The Transferee has computed any consideration paid to it to
acquire the Class R Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate equal to the applicable Federal rate prescribed by Section 1274(d)
of the Code, compounded semi-annually.
The Transferee has computed any consideration paid to it to acquire
the Class R Certificate in accordance with proposed U.S. Treasury Regulations
Sections 1.860E-1(c)(4)(iii) and 1.860E-1(c)(5) (or, after they have been
finalized, the final regulations) by computing present values using a discount
rate at least equal to the rate at which the Transferee regularly borrows, in
the ordinary course of its trade or business, substantial funds from unrelated
parties. The Transferee has provided all information necessary to demonstrate to
the transferor that it regularly borrows at such rate.
The transfer of the Class R Certificate complies with Section 6 of
Revenue Procedure 2001-12 (the "Revenue Procedure"), 2001-3 I.R.B. 335 (January
16, 2001) (or comparable provisions of applicable final U.S. Treasury
Regulations) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
Section 860L(a)(2) of the Code, as to which income from the Class R Certificate
will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the Transferee
had gross assets for financial reporting purposes (excluding any obligation of a
person related to the Investor within the meaning of Section 860L(g) of the Code
and excluding any other asset if a principal purpose for holding or acquiring
that asset is to permit the Transferee to satisfy this Section 13(ii)) in excess
of $100 million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class R Certificate only to
another "eligible corporation," as defined in Section 860(a)(2) of the Code, in
a transaction that satisfies the requirements of Section 4 of the Revenue
Procedure and the transfer is not to a foreign branch of such eligible
corporation or any other arrangement by which the Class R Certificate will be at
any time subject to net tax by a foreign country or possession of the United
States; and
(iv) the Transferee determined the consideration paid to it to
acquire the Class R Certificate based on reasonable market assumptions
(including, but not limited to, borrowing and investment rates, prepayment and
loss assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Transferee) that it has determined in good faith.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached this day
of ___________, ____.
[NAME OF TRANSFEREE]
By:______________________________
[Name of Officer]
[Title of Officer]
EXHIBIT E-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
REMIC RESIDUAL CERTIFICATES
_______________, 20__
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
Xxxxx Fargo Center
6th and Marquette
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(CMBS) MAC #N9309-121
Re: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4 (the
"Certificates")
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in such Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement, dated as of November 1, 2001 (the "Pooling and
Servicing Agreement"), among Bear Xxxxxxx Commercial Mortgage Securities Inc.,
as Depositor, Xxxxx Fargo Bank, National Association, as Master Servicer, GMAC
Commercial Mortgage Corporation, as special servicer, Lasalle Bank National
Association, as trustee, Xxxxx Fargo Bank Minnesota, National Association, as
paying agent and certificate registrar and ABN AMRO Bank N.V., as fiscal agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Residual Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement. The Transferor does not know or believe that any
representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result
of that investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in
the future. The Transferor understands that the transfer of the Residual
Certificates may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
4. The Transferor does not know and has no reason to know that the
Transferee will not honor the restrictions on subsequent transfers by the
Transferee under the Transfer Affidavit and Agreement, delivered in connection
with this transfer.
Very truly yours,
___________________________________
(Transferor)
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT F
FORM OF REGULATION S CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4, CLASS ____ (THE "CERTIFICATES")
TO: Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
or
CEDEL, S.A.
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Certificates held by you or on your behalf for
our account are beneficially owned by (a) non -U.S person(s) or (b) U.S.
person(s) who purchased the Certificates in transactions which did not require
registration under the United States Securities Act of 1933, as amended (the
"Securities Act"). As used in this paragraph, the term "U.S. person" has the
meaning given to it by Regulation S under the Securities Act. To the extent that
we hold an interest in any of the Certificates on behalf of person(s) other than
ourselves, we have received certifications from such person(s) substantially
identical to the certifications set forth herein.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
Certificates held by you or on your behalf for our account in accordance with
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to $__________ of
such beneficial interest in the above Certificates in respect of which we are
not able to certify and as to which we understand the exercise of any rights to
payments thereon and the exchange for definitive Certificates or for an interest
in definitive Certificates in global form cannot be made until we do so certify.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, 2001
By: ________________________________
As, or as agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
EXHIBIT G-1
FORM OF PRIMARY SERVICING AGREEMENT
[Available Upon Request]
EXHIBIT G-2
FORM OF PRIMARY SERVICING AGREEMENT
[Available Upon Request]
EXHIBIT H
FORM OF EXCHANGE CERTIFICATION
__________ __, 200_
TO: The Depository Trust Company
CEDEL BANK, S. A. or
Xxxxxx Guaranty Trust Company
of New York, Brussels Office
Euroclear Operation Center
Xxxxx Fargo Bank, National Association, as Master Servicer
Xxxxx Fargo Bank Minnesota, National Association,
as Certificate Registrar
LaSalle Bank National Association,
as Trustee
This is to notify you as to the transfer of the beneficial interest
in $_______________ of Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4, Class __(the
"Certificates").
The undersigned is the owner of a beneficial interest in the Class
__ [Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and
requests that on [INSERT DATE], (i) [Euroclear] [CEDEL] [DTC] debit account
#__________, with respect to $__________ principal denomination of the Class __
[Rule 144A-IAI Global Certificate] [Regulation S Global Certificate] and (ii)
[DTC] [Euroclear] [CEDEL] credit the beneficial interest of the below-named
purchaser, account #__________, in the Class __ [Rule 144A-IAI Global
Certificate] [Regulation S Global Certificate] in the same principal
denomination as follows:
Name:
Address:
Taxpayer I D. No.:
The undersigned hereby represents that this transfer is being made
in accordance with an exemption from the provisions of Section 5 of the United
States Securities Act of 1933, as amended (the "Securities Act"), which
representation is based upon the reasonable belief that the purchaser is [not a
U.S. Person as defined in Regulation S under the Securities Act][a "qualified
institutional buyer," as defined in Rule 144A under the Securities Act, and that
such purchaser has acquired the Certificates in a transaction effected in
accordance with the exemption from the registration requirements of the
Securities Act provided by Rule 144A and, if the purchaser has purchased the
Certificates for one or more accounts for which it is acting as fiduciary or
agent, each such account is a qualified institutional buyer or an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act][an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act and
in accordance with any applicable securities laws of any state of the United
States and, if the purchaser has purchased the Certificates for one or more
accounts for which it is acting as fiduciary or agent, each such account is a
qualified institutional buyer or an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the 1933 Act]
and that the purchaser is acquiring beneficial interests in the applicable
Certificate(1) for its own account or for one or more institutional accounts for
which it is acting as fiduciary or agent in a minimum amount equivalent to not
less than U.S.[$25,000] [$100,000] and integral multiples of U.S. $1 in excess
thereof for each such account.
Very truly yours,
[NAME OF HOLDER OF CERTIFICATE]
By: ______________________________________
[Name], [Chief Financial
or other Executive Officer]
--------
(1) [NOTE: INFORMATION PROVIDED ABOVE WITH RESPECT TO PURCHASER AND THE
FOREGOING REPRESENTATION MUST BE PROVIDED TO THE CERTIFICATE REGISTRAR
UPON ANY TRANSFER OF CERTIFICATES IF THE CERTIFICATES ARE NO LONGER HELD
IN GLOBAL FORM.]
EXHIBIT I
FORM OF EUROCLEAR OR CEDEL CERTIFICATE
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2001-TOP4, CLASS _______ (THE "CERTIFICATES")
TO: Xxxxx Fargo Bank Minnesota, National Association, as Certificate
Registrar
Attn: Corporate Trust Services (CMBS) MAC #N9309-121
LaSalle Bank National Association, as Trustee
Attn: Asset Backed Securities Trust Services Group
Bear Xxxxxxx Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates,
Series 2001-TOP4
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount of the Certificates set forth below (our "Member
Organizations") substantially to the effect set forth in the Pooling and
Servicing Agreement dated as of November 1, 2001 (the "Pooling and Servicing
Agreement") among both of you, Bear Xxxxxxx Commercial Mortgage Securities Inc.,
ABN AMRO Bank N.V., GMAC Commercial Mortgage Corporation, and Xxxxx Fargo Bank,
National Association, U.S. $__________ principal amount of the above-captioned
Certificates held by us or on our behalf are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Certificates in transactions
that did not require registration under the United States Securities Act of
1933, as amended (the "Securities Act"). As used in this paragraph, the term
"U.S. person" has the meaning given to it by Regulation S under the Securities
Act.
We further certify that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any interest in the
Certificates identified above are no longer true and cannot be relied upon as of
the date hereof.
[On Release Date: We hereby acknowledge that no portion of the Class
__ Regulation S Temporary Global Certificate shall be exchanged for an interest
in the Class __ Regulation S Permanent Global Certificate (as each such term is
defined in the Pooling and Servicing Agreement) with respect to the portion
thereof for which we have not received the applicable certifications from our
Member Organizations.]
[Upon any payments under the Regulation S Temporary Global
Certificate: We hereby agree to hold (and return to the Trustee upon request)
any payments received by us on the Class __ Regulation S Temporary Global
Certificate (as defined in the Pooling and Servicing Agreement) with respect to
the portion thereof for which we have not received the applicable certifications
from our Member Organizations.]
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated:
[XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Brussels office, as operator of the
Euroclear System]
or
[CEDEL BANK, S.A.]
By: ______________________________________
EXHIBIT J
LIST OF LOANS TO WHICH EXCESS SERVICING FEES ARE PAID
[Available From Depositor]
EXHIBIT K-1
FORM OF PURCHASE AGREEMENT I
[Under Separate Tab]
EXHIBIT K-2
FORM OF PURCHASE AGREEMENT II
[Under Separate Tab]
EXHIBIT K-3
FORM OF PURCHASE AGREEMENT III
[Under Separate Tab]
EXHIBIT K-4
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT IV
[Under Separate Tab]
EXHIBIT K-5
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT V
[Under Separate Tab]
EXHIBIT L
FORM OF INSPECTION REPORT
[Available from Master Servicer]
EXHIBIT M
FORM OF MONTHLY CERTIFICATEHOLDER REPORT
SUBSTANTIALLY SIMILAR TO THE INFORMATION
REPEATED IN THE FORM OF STATEMENT TO
CERTIFICATEHOLDERS IN THE
PROSPECTUS SUPPLEMENT
EXHIBIT N
FORM OF OPERATING STATEMENT ANALYSIS REPORT
[Available At CMSA Website version 2.0 dated 11/15/99]
EXHIBIT O
RESERVED
EXHIBIT P
RESERVED
EXHIBIT Q
RESERVED
EXHIBIT R
RESERVED
EXHIBIT S-1
FORM OF POWER OF ATTORNEY FOR MASTER SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2001-TOP4
Space above this line for Recorder's use
______________________________________________________________________________
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of November 1, 2001
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer under the
Pooling and Servicing Agreement ("Xxxxx Fargo Bank"), as its true and lawful
attorney-in-fact for it and in its name, place, stead and for its use and
benefit:
To perform any and all acts which may be necessary or appropriate to
enable Xxxxx Fargo Bank to service and administer the Mortgage Loans (as defined
in the Pooling and Servicing Agreement) in connection with the performance by
Xxxxx Fargo Bank of its duties as Master Servicer under the Pooling and
Servicing Agreement, giving and granting unto Xxxxx Fargo Bank full power and
authority to do and perform any and every act necessary, requisite, or proper in
connection with the foregoing and hereby ratifying, approving or confirming all
that Xxxxx Fargo Bank shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of _________ , 2001.
LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2001-TOP4
By: ______________________________________
Name:_____________________________________
Title: ___________________________________
ALL-PURPOSE ACKNOWLEDGEMENT
)
)
)
On __________________ before me, ___________________________
Date Name and Title of Officer (i.e., Your Name,
Notary Public)
personally appeared __________________________________________________
Name(s) of Document Signer(s)
____________________________________________________________________________
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Signature of Notary
(Affix seal in the above blank space)
EXHIBIT S-2
FORM OF POWER OF ATTORNEY FOR SPECIAL SERVICER
RECORDING REQUESTED BY:
XXXXX FARGO BANK, N.A.
AND WHEN RECORDED MAIL TO:
GMAC COMMERCIAL MORTGAGE CORPORATION
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:Commercial Mortgage Pass-
Through Certificates Series 2001-TOP4
Space above this line for Recorder's use
______________________________________________________________________
LIMITED POWER OF ATTORNEY
(SPECIAL)
KNOW ALL MEN BY THESE PRESENTS, that LASALLE BANK NATIONAL
ASSOCIATION, as trustee for Bear Xxxxxxx Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2001-TOP4 ("Trustee"),
under that certain Pooling and Servicing Agreement dated as of November 1, 2002
(the "Pooling and Servicing Agreement"), does hereby nominate, constitute and
appoint GMAC COMMERCIAL MORTGAGE CORPORATION, as Special Servicer under the
Pooling and Servicing Agreement ("GMAC"), 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 GMAC to service and administer the Mortgage Loans (as defined in the
Pooling and Servicing Agreement) in connection with the performance by GMAC of
its duties as Special Servicer under the Pooling and Servicing Agreement, giving
and granting unto GMAC 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 GMAC shall lawfully do or cause to
be done by virtue hereof.
S-2-1
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of __________, 2001.
LASALLE BANK NATIONAL ASSOCIATION, as
trustee for Bear Xxxxxxx Commercial
Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates,
Series 2001-TOP4
By: ______________________________________
Name:_____________________________________
Title: ___________________________________
S-2-2
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)
S-2-3
EXHIBIT T
FORM OF DEBT SERVICE COVERAGE RATIO PROCEDURES
"Debt Service Coverage Ratios" generally means the ratio of "Underwritable
Cash Flow" estimated to be produced by the related Mortgaged Property to the
annualized amount of debt service payable under that Mortgage Loan.
"Underwritable Cash Flow" in each case is an estimate of stabilized cash flow
available for debt service. In general, it is the estimated stabilized revenue
derived from the use and operation of a Mortgaged Property (consisting primarily
of rental income) less the sum of (a) estimated stabilized operating expenses
(such as utilities, administrative expenses, repairs and maintenance, management
fees and advertising), (b) fixed expenses (such as insurance, real estate taxes
and, if applicable, ground lease payments) and (c) capital expenditures and
reserves for capital expenditures, including tenant improvement costs and
leasing commissions. Underwritable Cash Flow generally does not reflect interest
expenses and non-cash items such as depreciation and amortization. In
determining Underwritable Cash Flow for a Mortgaged Property, the Master
Servicer may rely on rent rolls and other generally unaudited financial
information provided by the respective borrowers and may estimate cash flow
taking into account historical financial statements, material changes in the
operating position of the Mortgaged Property, and estimated capital
expenditures, leasing commissions and tenant improvement reserves. The Master
Servicer may make certain changes to operating statements and operating
information obtained from the respective borrowers.
EXHIBIT U
[Form of Assignment and Assumption Submission to Special Servicer]
See Primary Servicing Agreement
EXHIBIT V
[Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing
Submission Package to the Special Services]
See Primary Servicing Agreement
EXHIBIT W
Reserved
EXHIBIT X
Reserved
EXHIBIT Y
[Investor Certificate]
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Bear Xxxxxxx Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 2001-TOP4
In accordance with the Pooling and Servicing Agreement, dated as of
November 1, 2001 (the "Agreement"), by and among Bear Xxxxxxx Commercial
Mortgage Securities Inc., as Depositor, Xxxxx Fargo Bank, National
Association, as Master Servicer, GMAC Commercial Mortgage Corporation as
Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent, LaSalle Bank
National Association, as Trustee, and Xxxxx Fargo Bank Minnesota, N.A. as
Paying Agent and Certificate Registrar (the "Paying Agent"), with respect
to the above referenced certificates (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class __ Certificates.
2. The undersigned is requesting access to the Paying Agent's internet website
containing certain information (the "Information") and/or is requesting the
information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Paying Agent's disclosure to the undersigned of the
Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making
an evaluation in connection with purchasing the related Certificates, from
its accountants and attorneys, and otherwise from such governmental or
banking authorities or agencies to which the undersigned is subject), and
such Information will not, without the prior written consent of the Paying
Agent, be otherwise disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner which
could result in a violation of any provision of the Securities Act of 1933,
as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended, or would require registration of any Certificate pursuant to Section
5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor, the
Paying Agent and the Trust Fund for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_________________________________________
Beneficial Owner or Prospective Purchaser
By:______________________________________
Title:___________________________________
Company:_________________________________
Phone:___________________________________
EXHIBIT Z
Form of Notice and Certification
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
FOR LOANS HAVING BALANCE OF (a) $5,000,000 OR LESS, OR (b) LESS THAN 1% OF
OUTSTANDING POOL BALANCE, WHICHEVER IS LESS
To: [Address]
Attn:
From: _____________________________________, in its capacity
as Servicer (the "Servicer") under the Pooling and Servicing Agreement
dated as of __________________ (the "Pooling and Servicing Agreement"), among
the Servicer, __________________as Trustee, and others.
Date: _________, 20___
Re: _______________________________________.
Commercial Mortgage Pass-Through Certificates
Series ___________
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore______secured by the Mortgaged Properties identified on
the Mortgage Loan Schedule by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement. [NOTE: ALL
TERMS IN THIS CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING
AND SERVICING AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. NOTIFY YOU THAT THE MORTGAGOR HAS CONSUMMATED A DEFEASANCE
OF THE MORTGAGE LOAN PURSUANT TO THE TERMS OF THE MORTGAGE
LOAN, OF THE TYPE CHECKED BELOW:
____ a full defeasance of the payments scheduled to
be due in respect of the entire Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to
be due in respect of a portion of the Principal
Balance of the
Mortgage Loan that represents ___% of the
entire Principal Balance of the Mortgage Loan and,
under the Mortgage, has an allocated loan amount
of $____________ or _______% of the entire
Principal Balance;
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 SERVICER HAS DETERMINED,
CONSISTENT WITH THE SERVICING STANDARD, WILL HAVE NO
MATERIAL ADVERSE EFFECT ON THE MORTGAGE LOAN OR THE
DEFEASANCE TRANSACTION:
A. THE MORTGAGE LOAN DOCUMENTS PERMIT THE DEFEASANCE,
AND THE TERMS AND CONDITIONS FOR DEFEASANCE SPECIFIED
THEREIN WERE SATISFIED IN ALL MATERIAL RESPECTS IN
COMPLETING THE DEFEASANCE.
B. THE DEFEASANCE WAS CONSUMMATED ON __________, 20__.
C. THE DEFEASANCE COLLATERAL CONSISTS OF SECURITIES THAT
(I) CONSTITUTE "GOVERNMENT SECURITIES" AS DEFINED IN
SECTION 2(A)(16) OF THE INVESTMENT COMPANY ACT OF 1940
AS AMENDED (15 U.S.C. 80A-1), (II) ARE LISTED AS
"QUALIFIED INVESTMENTS FOR `AAA' FINANCINGS" UNDER
PARAGRAPHS 1, 2 OR 3 OF "CASH FLOW APPROACH" IN
STANDARD & POOR'S PUBLIC FINANCE CRITERIA 2000, AS
AMENDED TO THE DATE OF THE DEFEASANCE, (III) ARE RATED
`AAA' BY STANDARD & POOR'S, (IV) IF THEY INCLUDE A
PRINCIPAL OBLIGATION, THE PRINCIPAL DUE AT MATURITY
CANNOT VARY OR CHANGE, AND (V) ARE NOT SUBJECT TO
PREPAYMENT, CALL OR EARLY REDEMPTION. SUCH SECURITIES
HAVE THE CHARACTERISTICS SET FORTH BELOW:
CUSIP RATE MAT PAY DATES ISSUED
D. THE SERVICER RECEIVED AN OPINION OF COUNSEL (FROM
COUNSEL APPROVED BY SERVICER IN ACCORDANCE WITH THE
SERVICING STANDARD) THAT THE DEFEASANCE WILL NOT RESULT
IN AN ADVERSE REMIC EVENT.
E. THE SERVICER DETERMINED THAT THE DEFEASANCE
COLLATERAL WILL BE OWNED BY AN ENTITY (THE "DEFEASANCE
OBLIGOR") AS TO WHICH ONE OF THE STATEMENTS CHECKED
BELOW IS TRUE:
____ the related Mortgagor was a Single-Purpose Entity
(as defined in Standard & Poor's Structured
Finance Ratings Real Estate Finance Criteria, as
amended to the date of the defeasance (the "S&P
Criteria")) as of the date of the defeasance, and
after the defeasance owns no assets other than the
defeasance collateral and real property securing
Mortgage Loans included in the pool.
____ the related Mortgagor designated a
Single-Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral; or
____ the Servicer designated a Single-Purpose Entity
(as defined in the S&P Criteria) established for
the benefit of the Trust to own the defeasance
collateral.
F. THE SERVICER RECEIVED A BROKER OR SIMILAR
CONFIRMATION OF THE CREDIT, OR THE ACCOUNTANT'S
LETTER DESCRIBED BELOW CONTAINED STATEMENTS THAT IT
REVIEWED A BROKER OR SIMILAR CONFIRMATION OF THE
CREDIT, OF THE DEFEASANCE COLLATERAL TO AN ELIGIBLE
ACCOUNT (AS DEFINED IN THE S&P CRITERIA) IN THE NAME
OF THE DEFEASANCE OBLIGOR, WHICH ACCOUNT IS
MAINTAINED AS A SECURITIES ACCOUNT BY THE TRUSTEE
ACTING AS A SECURITIES INTERMEDIARY.
G. AS SECURITIES INTERMEDIARY, TRUSTEE IS OBLIGATED TO
MAKE THE SCHEDULED PAYMENTS ON THE MORTGAGE LOAN FROM
THE PROCEEDS OF THE DEFEASANCE COLLATERAL DIRECTLY TO
THE SERVICER'S COLLECTION ACCOUNT IN THE AMOUNTS AND ON
THE DATES SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS OR,
IN A PARTIAL DEFEASANCE, THE PORTION OF SUCH SCHEDULED
PAYMENTS ATTRIBUTED TO THE ALLOCATED LOAN AMOUNT FOR
THE REAL PROPERTY DEFEASED, INCREASED BY ANY DEFEASANCE
PREMIUM SPECIFIED IN THE MORTGAGE LOAN DOCUMENTS (THE
"SCHEDULED PAYMENTS").
H. THE SERVICER RECEIVED FROM THE MORTGAGOR WRITTEN
CONFIRMATION FROM A FIRM OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS, WHO WERE APPROVED BY SERVICER IN
ACCORDANCE WITH THE SERVICING STANDARD, STATING THAT
(I) REVENUES FROM PRINCIPAL AND INTEREST PAYMENTS MADE
ON THE DEFEASANCE COLLATERAL (WITHOUT TAKING INTO
ACCOUNT ANY EARNINGS ON REINVESTMENT OF SUCH REVENUES)
WILL BE SUFFICIENT TO TIMELY PAY EACH OF THE SCHEDULED
PAYMENTS AFTER THE DEFEASANCE INCLUDING THE PAYMENT IN
FULL OF THE MORTGAGE LOAN (OR THE ALLOCATED PORTION
THEREOF IN CONNECTION WITH A PARTIAL DEFEASANCE) ON ITS
MATURITY DATE (OR, IN THE CASE OF AN ARD LOAN, ON ITS
ANTICIPATED REPAYMENT DATE), (II) THE REVENUES RECEIVED
IN ANY MONTH FROM THE DEFEASANCE COLLATERAL WILL BE
APPLIED TO MAKE SCHEDULED PAYMENTS WITHIN FOUR (4)
MONTHS AFTER THE DATE OF RECEIPT, AND (III) INTEREST
INCOME FROM THE DEFEASANCE COLLATERAL TO THE DEFEASANCE
OBLIGOR IN ANY CALENDAR OR FISCAL YEAR WILL NOT EXCEED
SUCH DEFEASANCE OBLIGOR'S INTEREST EXPENSE FOR THE
MORTGAGE LOAN (OR THE ALLOCATED PORTION THEREOF IN A
PARTIAL DEFEASANCE) FOR SUCH YEAR.
I. THE SERVICER RECEIVED OPINIONS FROM COUNSEL, WHO WERE
APPROVED BY SERVICER IN ACCORDANCE WITH THE SERVICING
STANDARD, THAT (I) THE AGREEMENTS EXECUTED BY THE
MORTGAGOR AND/OR THE DEFEASANCE OBLIGOR IN CONNECTION
WITH THE DEFEASANCE ARE ENFORCEABLE AGAINST THEM IN
ACCORDANCE WITH THEIR TERMS, AND (II) THE TRUSTEE WILL
HAVE A PERFECTED, FIRST PRIORITY SECURITY INTEREST IN
THE DEFEASANCE COLLATERAL DESCRIBED ABOVE.
J. THE AGREEMENTS EXECUTED IN CONNECTION WITH THE
DEFEASANCE (I) PERMIT REINVESTMENT OF PROCEEDS OF THE
DEFEASANCE COLLATERAL ONLY IN PERMITTED INVESTMENTS (AS
DEFINED IN THE S&P CRITERIA), (II) PERMIT RELEASE OF
SURPLUS DEFEASANCE COLLATERAL AND EARNINGS ON
REINVESTMENT TO THE DEFEASANCE OBLIGOR OR THE MORTGAGOR
ONLY AFTER THE MORTGAGE LOAN HAS BEEN PAID IN FULL, IF
ANY SUCH RELEASE IS PERMITTED, (III) PROHIBIT ANY
SUBORDINATE LIENS AGAINST THE DEFEASANCE COLLATERAL,
AND (IV) PROVIDE FOR PAYMENT FROM SOURCES OTHER THAN
THE DEFEASANCE COLLATERAL OR OTHER ASSETS OF THE
DEFEASANCE OBLIGOR OF ALL FEES AND EXPENSES OF THE
SECURITIES INTERMEDIARY FOR ADMINISTERING THE
DEFEASANCE AND THE SECURITIES ACCOUNT AND ALL FEES AND
EXPENSES OF MAINTAINING THE EXISTENCE OF THE DEFEASANCE
OBLIGOR.
K. THE ENTIRE PRINCIPAL BALANCE OF THE MORTGAGE LOAN AS
OF THE DATE OF DEFEASANCE WAS $___________
[$5,000,000 OR LESS OR LESS THAN ONE PERCENT OF POOL
BALANCE, WHICHEVER IS LESS] WHICH IS LESS THAN 1% OF
THE AGGREGATE CERTIFICATE BALANCE OF THE CERTIFICATES
AS OF THE DATE OF THE MOST RECENT PAYING AGENT'S
MONTHLY CERTIFICATEHOLDER REPORT RECEIVED BY US (THE
"CURRENT REPORT").
L. THE DEFEASANCE DESCRIBED HEREIN, TOGETHER WITH ALL
PRIOR AND SIMULTANEOUS DEFEASANCES OF MORTGAGE LOANS,
BRINGS THE TOTAL OF ALL FULLY AND PARTIALLY DEFEASED
MORTGAGE LOANS TO $__________________, WHICH IS _____%
OF THE AGGREGATE CERTIFICATE BALANCE OF THE
CERTIFICATES AS OF THE DATE OF THE CURRENT REPORT.
3. CERTIFY THAT, IN ADDITION TO THE FOREGOING, SERVICER HAS
IMPOSED SUCH ADDITIONAL CONDITIONS TO THE DEFEASANCE,
SUBJECT TO THE LIMITATIONS IMPOSED BY THE MORTGAGE LOAN
DOCUMENTS, AS ARE CONSISTENT WITH THE SERVICING STANDARD.
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
TRANSMITTED TO THE TRUSTEE FOR PLACEMENT IN THE RELATED
MORTGAGE FILE OR, TO THE EXTENT NOT REQUIRED TO BE PART OF
THE RELATED MORTGAGE FILE, ARE IN THE POSSESSION OF THE
SERVICER AS PART OF THE SERVICER'S MORTGAGE FILE.
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 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.
IN WITNESS WHEREOF, the Servicer has caused this Notice and Certification
to be executed as of the date captioned above.
SERVICER:_________________________________
By:_______________________________________
Name:
Title:
EXHIBIT AA
Form of Primary Servicing Agreement
(Xxxxx Fargo)
[Available Upon Request]
SCHEDULE I
JHREF LOAN SCHEDULE
BSCMSI 2001 TOP4 MORTGAGE LOAN SCHEDULE (SCHEDULE I)
JHREF
------------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
------------------------------------------------------------------------------------------------------------------------------------
3 JHREF 000 Xxxxxxx Xxxxxx and 00 Xxxx Xxxxxx $32,140,564 8.000% $254,699.35 11/11/1999 120 97
26 JHREF Mad River Apartments $10,539,381 6.950% $72,152.32 06/15/1998 120 80
44 JHREF Chatwell Club Apartments $8,038,635 6.800% $54,109.79 09/10/1998 120 83
47 JHREF Prospect Plaza $7,677,504 8.000% $65,604.38 10/11/1995 180 108
55 JHREF Highland House Villas $6,821,186 7.435% $50,658.28 01/12/1998 120 75
57 JHREF Columbus Estates $6,500,197 6.880% $47,891.26 07/06/1998 120 81
58 JHREF Valley Square Shopping Center $6,394,631 7.460% $45,967.52 04/30/1998 120 78
62 JHREF Carlyle Plaza $5,881,248 8.125% $50,707.48 10/10/1995 156 84
00 XXXXX Xxxxx Xxxxxxxxxx Xxxxxxx $5,877,436 7.850% $42,604.43 6/14/01 120 116
64 JHREF Mariposa Apartments $5,855,528 7.170% $40,605.51 06/22/1999 120 92
65 JHREF Bridgewood Apartments $5,804,066 7.420% $41,647.14 3/18/98 120 77
66 JHREF Deerwood Office Park II $5,723,558 7.200% $40,252.14 02/26/1998 120 76
69 JHREF Ralph's Supermarket $5,320,374 7.250% $37,519.70 04/20/1998 120 78
74 JHREF Cabrillo Park $4,937,779 7.350% $34,104.12 6/26/01 120 116
79 JHREF Red Rock Center $4,543,744 7.070% $31,406.73 08/11/1998 120 82
98 JHREF Kaiser #1 Warehouse $3,616,505 7.000% $24,849.05 11/02/1998 120 85
99 JHREF Willow Creek Apartments $3,537,410 6.770% $23,884.86 03/14/1998 120 77
103 JHREF Hawaiian Gardens Square Shopping Center $3,308,918 7.250% $23,193.99 10/30/1998 120 85
106 JHREF Palos Verdes Rancho Mobile Home Park $3,150,769 6.940% $21,491.53 09/23/1998 120 83
107 JHREF The Gap Building $3,041,657 7.390% $24,765.29 12/27/2000 90 80
000 XXXXX Xxxxx Xxxx Xxxxx $2,550,000 7.040% $17,033.77 05/25/2001 120 115
134 JHREF Xxxxxx Xxxxx Financial Center $2,095,217 7.630% $14,870.89 06/11/2001 120 116
TOTAL: $143,356,307
---------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION MASTER
LOAN AMORT. LOCKOUT YM ADMIN. COST SERV. FEE
NO. (MOS) SEASONING PERIOD DEF DEF/YM1 YM2 YM1 YM0.75 OPEN FORMULA RATE (BPS) RATE (BPS)
---------------------------------------------------------------------------------------------------------------------
3 300 23 60 57 3 A 11.00 2.00
26 360 40 60 57 3 A 11.00 2.00
44 360 37 60 57 3 A 11.00 2.00
47 300 72 72 105 3 F 11.00 2.00
55 360 45 59 57 4 G 11.00 2.00
57 300 39 48 69 3 A 11.00 2.00
58 360 42 60 57 3 A 11.00 2.00
62 300 72 82 70 4 H 11.00 2.00
63 360 4 60 57 3 A 11.00 2.00
64 360 28 60 57 3 I 11.00 2.00
65 360 43 60 54 6 A 11.00 2.00
66 360 44 60 57 3 A 11.00 2.00
69 360 42 60 57 3 A 11.00 2.00
74 360 4 60 57 3 A 11.00 2.00
79 360 38 60 57 3 A 11.00 2.00
98 360 35 72 45 3 J 11.00 2.00
99 360 43 60 54 6 A 11.00 2.00
103 360 35 60 57 3 A 11.00 2.00
106 360 37 60 57 3 A 11.00 2.00
107 240 10 48 39 3 A 11.00 2.00
116 360 5 60 59 1 A 11.00 2.00
134 360 4 60 57 3 A 11.00 2.00
-----------------------------------------------------------------------
PRIMARY MASTER EXCESS PRIMARY EXCESS TRUSTEE
LOAN SERV. FEE SERV. FEE SERV. FEE FEE
NO. RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
-----------------------------------------------------------------------
3 1.00 1.00 6.73 0.27
26 1.00 1.00 6.73 0.27
44 1.00 1.00 6.73 0.27
47 1.00 1.00 6.73 0.27
55 1.00 1.00 6.73 0.27
57 1.00 1.00 6.73 0.27
58 1.00 1.00 6.73 0.27
62 1.00 1.00 6.73 0.27
63 1.00 1.00 6.73 0.27
64 1.00 1.00 6.73 0.27
65 1.00 1.00 6.73 0.27
66 1.00 1.00 6.73 0.27
69 1.00 1.00 6.73 0.27
74 1.00 1.00 6.73 0.27
79 1.00 1.00 6.73 0.27
98 1.00 1.00 6.73 0.27
99 1.00 1.00 6.73 0.27
103 1.00 1.00 6.73 0.27
106 1.00 1.00 6.73 0.27
107 1.00 1.00 6.73 0.27
116 1.00 1.00 6.73 0.27
134 1.00 1.00 6.73 0.27
SCHEDULE II
XXXXX FARGO LOAN SCHEDULE
BSCMSI 2001 TOP4 MORTGAGE LOAN SCHEDULE (SCHEDULE II)
WFB
----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
----------------------------------------------------------------------------------------------------------------------------------
6 WFB York Galleria (1) $25,845,466 8.340% $196,976.78 11/9/00 120 109
7 WFB 0000 Xxxxxx Xxxxxxxxx $23,909,854 6.800% $183,201.50 7/27/01 120 118
14 WFB Pacific Gulf Commerce Park $16,649,830 7.530% $123,737.60 7/9/01 120 117
27 WFB Xxxx-Xxxxxxx - San Xxxx (IV) $1,811,101 8.770% $16,164.29 4/5/01 120 114
28 WFB Xxxx-Xxxxxxx - Scottsdale (IV) $1,673,273 8.770% $14,934.16 4/5/01 120 114
29 WFB Xxxx-Xxxxxxx - Tropicana (IV) $1,527,016 8.770% $13,628.80 4/5/01 120 114
30 WFB Xxxx-Xxxxxxx - Lawndale (IV) $1,388,197 8.770% $12,389.82 4/5/01 120 114
31 WFB Xxxx-Xxxxxxx - Oxnard (IV) $1,375,802 8.770% $12,279.20 4/5/01 120 114
32 WFB Xxxx-Xxxxxxx - Cotati (IV) $886,463 8.770% $7,911.79 4/5/01 120 114
33 WFB Xxxx-Xxxxxxx - Cathedral City (IV) $803,171 8.770% $7,168.40 4/5/01 120 114
34 WFB Xxxx-Xxxxxxx - Colton (IV) $588,992 8.770% $5,256.82 4/5/01 120 114
35 WFB Xxxx-Xxxxxxx - Albuquerque (IV) $458,105 8.770% $4,088.64 4/5/01 120 114
43 WFB Campus Commons Retirement Apts $8,683,505 7.706% $62,348.90 12/8/00 120 110
48 WFB Burnt Mill Business Park $7,483,266 7.700% $53,472.02 6/8/01 120 116
56 WFB Pleasant Valley Mobile Home Park $6,732,089 7.090% $45,316.65 6/21/01 120 116
00 XXX Xxxxxx Xxxxx Xxxxxxxx Xxxx $5,104,030 7.160% $40,424.00 5/2/01 120 115
76 WFB Xxxx Building $4,646,676 7.830% $33,642.80 5/30/01 120 115
77 WFB TMI Products Building $4,618,577 8.260% $34,966.59 9/28/00 120 108
82 WFB Best Buy - Erie $4,486,154 7.710% $33,063.69 5/25/01 120 116
85 WFB Butte Community Employment Center $4,435,579 7.750% $42,357.41 5/8/01 180 175
86 WFB Lowes - Vacaville $4,389,771 7.560% $30,946.41 6/15/01 120 116
93 WFB Golf Terrace Apartments $4,172,679 6.700% $27,004.88 6/26/01 120 116
94 WFB Xxxxxxx Boulevard $3,973,664 7.580% $32,419.68 5/7/01 240 236
96 WFB Imperial Village Apartments $3,788,394 7.588% $26,799.50 5/8/01 96 91
101 WFB Colonial Square Shopping Center $3,483,673 7.990% $26,990.39 4/24/01 120 115
105 WFB Office Depot - Alhambra $3,234,345 8.040% $31,421.18 5/10/01 180 175
112 WFB Lo Garto Apartments $2,692,051 6.700% $17,422.51 6/26/01 120 116
114 WFB Office Depot - Folsom $2,667,973 8.180% $21,005.25 5/8/01 120 115
120 WFB Plymouth Court $2,385,030 7.390% $17,564.42 4/23/01 120 114
121 WFB Baseline Business Center $2,329,168 7.210% $18,516.92 5/9/01 120 115
124 WFB Franciscan Business Park $2,296,610 6.870% $16,135.53 5/1/01 120 115
126 WFB Washington Courthouse Apartments $2,265,230 8.010% $16,745.73 11/22/00 120 109
129 WFB Columbine Knolls Village $2,191,156 7.170% $14,888.69 3/28/01 120 114
135 WFB Broadview Business Center $1,994,090 7.710% $14,273.00 4/17/01 120 115
136 WFB Systems Parkway Building $1,990,152 7.720% $15,067.20 5/18/01 120 115
137 WFB Danray Distribution Center $1,989,657 7.470% $14,740.82 5/3/01 60 55
138 WFB Stoneybrook Apartments $1,944,401 7.815% $14,057.73 4/9/01 120 115
139 WFB 31 Journey $1,891,047 7.940% $14,589.07 5/4/01 120 115
140 WFB Wilshire Blvd. $1,738,998 7.350% $12,762.09 4/16/01 120 114
143 WFB Xxxxxxxx Centre West $1,613,121 6.960% $10,734.42 3/31/01 120 114
144 WFB Sunrise Business Park $1,609,695 7.290% $11,751.25 4/10/01 120 114
145 WFB Laurenbrook Apartment Complex $1,608,320 7.430% $13,021.42 4/11/01 240 234
146 WFB Walgreens - Xxxxxx $1,596,318 7.450% $15,017.82 4/13/01 180 174
147 WFB U-Move 'n Store - Corona $1,586,643 7.640% $13,026.80 5/22/01 120 115
148 WFB Santa Xxxx Plaza $1,584,868 8.000% $13,383.04 3/19/01 240 234
149 WFB Hubcap Building $1,584,700 7.850% $11,501.02 3/28/01 120 114
150 WFB Wheatridge Apartments $1,538,177 7.260% $11,213.50 3/21/01 120 113
151 WFB XxXxxxxxx Industrial $1,447,656 7.150% $17,532.45 3/23/01 120 114
153 WFB River Bluff Apartment Homes $1,311,856 7.445% $9,707.51 3/30/01 120 114
154 WFB Walgreens - Mundelein $1,295,046 7.370% $8,974.35 4/24/01 120 114
155 WFB Walgreens - Springfield $1,268,595 7.470% $9,163.94 4/17/01 120 114
158 WFB Mt. Sterling Apartments $1,231,967 8.010% $9,107.33 11/24/00 120 109
160 WFB 000 Xxxxxxx Xxxxxx $1,192,908 7.660% $8,993.16 4/12/01 120 114
162 WFB Candlewood Mobile Home Park $1,156,365 7.955% $9,758.92 3/21/01 240 233
163 WFB Xxxxx Xxxx $1,117,058 7.000% $13,352.48 5/15/01 120 115
164 WFB Lafayette Shopping Center $1,026,567 7.850% $7,450.35 3/27/01 120 114
165 WFB North by Northeast Shoppes $910,513 7.740% $6,905.25 5/9/01 120 115
166 WFB Glendale Shoppes $845,913 7.840% $6,470.60 5/9/01 120 115
167 WFB Shadeland Crossing $831,065 7.940% $6,411.51 5/14/01 120 115
168 WFB Shadow Ridge Apartments $794,534 6.920% $5,613.47 4/6/01 120 114
TOTAL: $201,677,120
--------------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION MASTER
LOAN AMORT. LOCKOUT YM ADMIN. COST SERV. FEE
NO. (MOS) SEASONING PERIOD DEF DEF/YM1 YM2 YM1 YM0.75 OPEN FORMULA RATE (BPS) RATE (BPS)
-------------------------------------------------------------------------------------------------------------------------
6 360 11 34 82 4 3.27 2.00
7 240 2 34 82 4 2.27 2.00
14 300 3 35 81 4 2.27 2.00
27 240 6 35 81 4 2.27 2.00
28 240 6 35 81 4 2.27 2.00
29 240 6 35 81 4 2.27 2.00
30 240 6 35 81 4 2.27 2.00
31 240 6 35 81 4 2.27 2.00
32 240 6 35 81 4 2.27 2.00
33 240 6 35 81 4 2.27 2.00
34 240 6 35 81 4 2.27 2.00
35 240 6 35 81 4 2.27 2.00
43 360 10 35 81 4 3.27 2.00
48 360 4 35 81 4 10.27 2.00
56 360 4 35 81 4 3.27 2.00
72 240 5 35 81 4 3.27 2.00
76 360 5 35 81 4 3.27 2.00
77 360 12 34 82 4 3.27 2.00
82 324 4 34 82 4 3.27 2.00
85 180 5 35 141 4 3.27 2.00
86 360 4 35 81 4 3.27 2.00
93 360 4 35 81 4 3.27 2.00
94 240 4 34 202 4 3.27 2.00
96 360 5 35 57 4 3.27 2.00
101 300 5 34 82 4 3.27 2.00
105 180 5 35 141 4 3.27 2.00
112 360 4 35 81 4 7.27 2.00
114 300 5 35 81 4 7.27 2.00
120 300 6 35 81 4 7.27 2.00
121 240 5 35 81 4 7.27 2.00
124 300 5 35 81 4 7.27 2.00
126 360 11 35 81 4 16.27 2.00
129 360 6 34 82 4 7.27 2.00
135 360 5 34 82 4 7.27 2.00
136 300 5 35 81 4 7.27 2.00
137 300 5 35 21 4 7.27 2.00
138 360 5 34 82 4 7.27 2.00
139 300 5 35 81 4 7.27 2.00
140 300 6 35 81 4 7.27 2.00
143 360 6 34 82 4 7.27 2.00
144 300 6 35 81 4 7.27 2.00
145 240 6 35 201 4 7.27 2.00
146 180 6 35 141 4 7.27 2.00
147 240 5 35 81 4 7.27 2.00
148 240 6 34 202 4 7.27 2.00
149 360 6 34 82 4 7.27 2.00
150 300 7 35 81 4 7.27 2.00
151 120 6 34 82 4 12.27 2.00
153 300 6 34 82 4 12.27 2.00
154 360 6 35 81 4 12.27 2.00
155 324 6 35 81 4 12.27 2.00
158 360 11 35 81 4 21.27 2.00
160 300 6 35 81 4 12.27 2.00
162 240 7 35 201 4 12.27 2.00
163 120 5 35 81 4 12.27 2.00
164 360 6 34 82 4 12.27 2.00
165 300 5 35 81 4 34.27 2.00
166 300 5 35 81 4 34.27 2.00
167 300 5 35 81 4 34.27 2.00
168 300 6 35 81 4 25.27 2.00
-----------------------------------------------------------------------
PRIMARY MASTER EXCESS PRIMARY EXCESS TRUSTEE
LOAN SERV. FEE SERV. FEE SERV. FEE FEE
NO. RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
-----------------------------------------------------------------------
6 1.00 0.00 0.00 0.27
7 0.00 0.00 0.00 0.27
14 0.00 0.00 0.00 0.27
27 0.00 0.00 0.00 0.27
28 0.00 0.00 0.00 0.27
29 0.00 0.00 0.00 0.27
30 0.00 0.00 0.00 0.27
31 0.00 0.00 0.00 0.27
32 0.00 0.00 0.00 0.27
33 0.00 0.00 0.00 0.27
34 0.00 0.00 0.00 0.27
35 0.00 0.00 0.00 0.27
43 1.00 0.00 0.00 0.27
48 8.00 0.00 0.00 0.27
56 1.00 0.00 0.00 0.27
72 1.00 0.00 0.00 0.27
76 1.00 0.00 0.00 0.27
77 1.00 0.00 0.00 0.27
82 1.00 0.00 0.00 0.27
85 1.00 0.00 0.00 0.27
86 1.00 0.00 0.00 0.27
93 1.00 0.00 0.00 0.27
94 1.00 0.00 0.00 0.27
96 1.00 0.00 0.00 0.27
101 1.00 0.00 0.00 0.27
105 1.00 0.00 0.00 0.27
112 1.00 4.00 0.00 0.27
114 1.00 4.00 0.00 0.27
120 1.00 4.00 0.00 0.27
121 1.00 4.00 0.00 0.27
124 1.00 4.00 0.00 0.27
126 10.00 4.00 0.00 0.27
129 1.00 4.00 0.00 0.27
135 1.00 4.00 0.00 0.27
136 1.00 4.00 0.00 0.27
137 1.00 4.00 0.00 0.27
138 1.00 4.00 0.00 0.27
139 1.00 4.00 0.00 0.27
140 1.00 4.00 0.00 0.27
143 1.00 4.00 0.00 0.27
144 1.00 4.00 0.00 0.27
145 1.00 4.00 0.00 0.27
146 1.00 4.00 0.00 0.27
147 1.00 4.00 0.00 0.27
148 1.00 4.00 0.00 0.27
149 1.00 4.00 0.00 0.27
150 1.00 4.00 0.00 0.27
151 1.00 9.00 0.00 0.27
153 1.00 9.00 0.00 0.27
154 1.00 9.00 0.00 0.27
155 1.00 9.00 0.00 0.27
158 10.00 9.00 0.00 0.27
160 1.00 9.00 0.00 0.27
162 1.00 9.00 0.00 0.27
163 1.00 9.00 0.00 0.27
164 1.00 9.00 0.00 0.27
165 10.00 22.00 0.00 0.27
166 10.00 22.00 0.00 0.27
167 10.00 22.00 0.00 0.27
168 1.00 22.00 0.00 0.27
(1) The Master Servicing Fee and Primary Servicing Fee for this loan are 0 bps,
rather than the 2 bps and 1 bp shown in this table. This loan has an
additional servicing fee, referred to as the "Pari-Passu Loan Servicing Fee
Rate" in the Pooling and Servicing Agreement, which is equal to 3 bps. The
total Administrative Cost Rate for this loan is therefore 3.27 bps, as
shown in this table."
SCHEDULE III
PRINCIPAL LOAN SCHEDULE
BSCMSI 2001 TOP4 MORTGAGE LOAN SCHEDULE (SCHEDULE III)
PCF
------------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
------------------------------------------------------------------------------------------------------------------------------------
2 PCF Xxxxxx Corporate Center IV-Phase I $41,781,154 7.350% $289,368.29 2/9/01 120 112
19 PCF The Crossing at Stonegate $14,480,374 7.280% $99,210.78 7/31/01 120 118
36 PCF Pinellas Business Center $9,986,262 7.220% $68,014.26 8/10/01 120 118
38 PCF Green Plaza Apartments $9,971,245 6.790% $65,125.92 6/19/01 120 116
39 PCF 0000 Xxxxx Xxxxxx $9,954,044 7.510% $73,965.00 6/18/01 120 116
40 PCF Bristol Square Apartments $9,682,865 7.610% $68,555.93 7/30/01 120 117
42 PCF Market at Wolf Creek $8,948,716 7.880% $65,287.48 1/23/01 120 111
45 PCF Northridge Shopping Center $7,964,964 7.560% $56,266.21 2/28/01 120 113
49 PCF The Atrium Office Building $7,454,328 7.950% $54,771.15 12/21/00 120 110
50 PCF Highland Forest Apartments $7,369,938 7.130% $49,880.15 4/13/01 120 114
51 PCF The Center at Clear Lake $7,337,484 7.740% $52,605.52 6/20/01 120 117
52 PCF North Mountain Village $7,137,616 7.680% $50,878.05 7/3/01 120 117
60 PCF Georgetown Square Shopping Center $6,000,000 6.870% $34,827.08 7/31/01 120 117
78 PCF Forest Village Shopping Center $4,578,280 7.270% $31,453.46 3/8/01 120 113
80 PCF Indian Canyon Apartments $4,515,964 7.160% $30,592.73 7/13/01 120 117
81 PCF Hope Xxxxx Crossing $4,499,982 7.510% $36,682.32 3/29/01 240 234
83 PCF 00 Xxxxx Xxxx Xxxxx $4,485,226 7.080% $32,035.09 7/31/01 120 117
84 PCF North County Festival Shopping Center $4,474,469 7.210% $34,038.37 5/29/01 120 116
87 PCF 000 Xxxxx Xxxx (B) $2,291,795 7.610% $16,255.53 4/9/01 120 114
88 PCF 000 Xxxxx Xxxxx Xxxx (B) $2,092,508 7.610% $14,842.01 4/9/01 120 114
95 PCF Best Buy $3,864,665 7.080% $35,228.96 7/25/01 180 177
97 PCF BelAir Village $3,670,224 7.330% $25,334.44 4/13/01 120 114
100 PCF Ivystone Apartments - Phase I $3,490,509 7.010% $23,309.10 6/26/01 120 116
102 PCF Publix at Lake Forest $3,358,950 7.060% $30,674.33 6/6/01 180 176
108 PCF Airborne Express $2,981,148 6.960% $21,126.89 5/10/01 120 115
109 PCF Stratford Park Apartments $2,893,606 7.740% $20,755.92 5/31/01 120 116
111 PCF Xxxxxx Industrial $2,793,626 7.420% $19,424.85 7/19/01 120 117
115 PCF Goshen Village $2,583,424 7.330% $17,832.59 4/13/01 120 114
119 PCF Wedgewood Place Apartments $2,491,193 7.040% $16,699.78 5/17/01 120 115
152 PCF General Washington Drive $1,423,494 7.590% $13,422.73 6/12/01 180 176
159 PCF Shoal Crest Apartments $1,223,475 7.610% $8,657.84 8/2/01 120 118
000 XXX Xxxxxx Xxxxxxx Apartments $1,188,946 6.930% $9,253.23 5/31/01 240 235
TOTAL: $206,970,471
----------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION MASTER
LOAN AMORT. LOCKOUT YM ADMIN. COST SERV. FEE
NO. (MOS) SEASONING PERIOD DEF DEF/YM1 YM2 YM1 YM0.75 OPEN FORMULA RATE (BPS) RATE (BPS)
---------------------------------------------------------------------------------------------------------------------
2 360 8 32 84 4 6.27 2.00
19 360 2 26 90 4 6.27 2.00
36 360 2 26 90 4 6.27 2.00
38 360 4 28 88 4 6.27 2.00
39 300 4 28 88 4 6.27 2.00
40 360 3 27 89 4 E 6.27 2.00
42 360 9 33 83 4 6.27 2.00
45 360 7 31 85 4 6.27 2.00
49 360 10 34 82 4 6.27 2.00
50 360 6 30 86 4 6.27 2.00
51 360 3 27 89 4 6.27 2.00
52 360 3 27 89 4 6.27 2.00
60 IO 3 27 89 4 6.27 2.00
78 360 7 31 85 4 6.27 2.00
80 360 3 27 89 4 6.27 2.00
81 240 6 30 206 4 6.27 2.00
83 300 3 27 89 4 6.27 2.00
84 264 4 28 88 4 6.27 2.00
87 360 6 30 86 4 6.27 2.00
88 360 6 30 86 4 6.27 2.00
95 180 3 27 149 4 6.27 2.00
97 360 6 30 86 4 6.27 2.00
100 360 4 28 88 4 6.27 2.00
102 180 4 28 148 4 6.27 2.00
108 300 5 29 87 4 6.27 2.00
109 360 4 28 88 4 6.27 2.00
111 360 3 27 89 4 6.27 2.00
115 360 6 30 86 4 6.27 2.00
119 360 5 29 87 4 6.27 2.00
152 180 4 28 148 4 6.27 2.00
159 360 2 26 90 4 E 6.27 2.00
161 240 5 29 207 4 6.27 2.00
---------------------------------------------------------------------------
PRIMARY MASTER EXCESS PRIMARY EXCESS TRUSTEE
LOAN SERV. FEE SERV. FEE SERV. FEE FEE
NO. RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
---------------------------------------------------------------------------
2 1.00 3.00 0.00 0.27
19 1.00 3.00 0.00 0.27
36 1.00 3.00 0.00 0.27
38 1.00 3.00 0.00 0.27
39 1.00 3.00 0.00 0.27
40 1.00 3.00 0.00 0.27
42 1.00 3.00 0.00 0.27
45 1.00 3.00 0.00 0.27
49 1.00 3.00 0.00 0.27
50 1.00 3.00 0.00 0.27
51 1.00 3.00 0.00 0.27
52 1.00 3.00 0.00 0.27
60 1.00 3.00 0.00 0.27
78 1.00 3.00 0.00 0.27
80 1.00 3.00 0.00 0.27
81 1.00 3.00 0.00 0.27
83 1.00 3.00 0.00 0.27
84 1.00 3.00 0.00 0.27
87 1.00 3.00 0.00 0.27
88 1.00 3.00 0.00 0.27
95 1.00 3.00 0.00 0.27
97 1.00 3.00 0.00 0.27
100 1.00 3.00 0.00 0.27
102 1.00 3.00 0.00 0.27
108 1.00 3.00 0.00 0.27
109 1.00 3.00 0.00 0.27
111 1.00 3.00 0.00 0.27
115 1.00 3.00 0.00 0.27
119 1.00 3.00 0.00 0.27
152 1.00 3.00 0.00 0.27
159 1.00 3.00 0.00 0.27
161 1.00 3.00 0.00 0.27
SCHEDULE IV
BEAR XXXXXXX FUNDING LOAN SCHEDULE
BSCMSI 2001 TOP4 MORTGAGE LOAN SCHEDULE (SCHEDULE IV)
BSFI
----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LOAN CUT-OFF MORTGAGE MONTHLY NOTE ORIG. TERM REM. TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
----------------------------------------------------------------------------------------------------------------------------------
0 XXXX Xxxx Xxxx Xxxxxx - Xxxxx X $28,444,141 7.230% $194,033.77 8/2/01 60 57
8 BSFI Tyson's Square $18,157,238 6.840% $126,782.15 8/31/01 120 118
15 BSFI Sands Lake Corners Shopping Center (A) $11,900,000 6.800% $67,433.33 5/31/01 84 79
16 BSFI Petsmart Portfolio - Chattanooga (II) (A) $1,375,000 7.373% $8,448.23 8/9/01 81 79
17 BSFI Petsmart Portfolio - Fredericksburg (II) (A) $1,375,000 7.373% $8,448.23 8/9/01 81 79
18 BSFI Petsmart Portfolio - Daytona Beach (II) (A) $1,350,000 7.373% $8,294.61 8/9/01 81 79
20 BSFI Xxxxxxx Square Shopping Center $13,530,000 6.500% $73,287.50 8/13/01 60 58
22 BSFI Pine Center (III) $7,304,955 7.550% $68,716.36 6/15/01 180 176
23 BSFI Cranberry Shoppes (III) $3,716,729 7.550% $34,962.58 6/15/01 180 176
24 BSFI Xxxxxxxxx Plaza (III) $1,631,012 7.550% $15,342.62 6/15/01 180 176
46 BSFI XV Beacon $7,685,976 7.500% $57,271.82 2/15/01 120 112
53 BSFI Veteran Plaza Apartments $6,989,814 6.985% $46,500.68 8/7/01 120 118
67 BSFI Xxxxxxxxxx Tower $5,469,724 6.865% $42,196.90 7/30/01 120 117
70 BSFI 000 X. Xxxxxxx Xxxxxx $5,271,128 6.940% $40,900.18 8/1/01 120 117
104 BSFI Mimi's Plaza $3,293,661 7.305% $22,635.05 7/30/01 120 117
110 BSFI Prospect Office $2,845,168 7.755% $20,427.60 7/30/01 120 117
113 BSFI Island Palm Shoppes $2,688,976 7.365% $19,716.27 6/19/01 120 116
117 BSFI Xxxxxxx River Industrial Plaza $2,494,895 7.075% $16,758.68 7/30/01 120 117
118 BSFI Xxxxxx Industrial Plaza $2,494,895 7.075% $16,758.68 7/30/01 120 117
125 BSFI 5301 Spring Valley $2,296,392 7.905% $17,200.76 8/7/01 120 118
TOTAL: $130,314,702
---------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION MASTER
LOAN AMORT. LOCKOUT YM ADMIN. COST SERV. FEE
NO. (MOS) SEASONING PERIOD DEF DEF/YM1 YM2 YM1 YM0.75 OPEN FORMULA RATE (BPS) RATE (BPS)
---------------------------------------------------------------------------------------------------------------------
5 360 3 25 33 2 B 5.27 2.00
8 300 2 47 72 1 5.27 2.00
15 IO 5 35 47 2 C 5.27 2.00
16 IO 2 32 47 2 D 5.27 2.00
17 IO 2 32 47 2 D 5.27 2.00
18 IO 2 32 47 2 D 5.27 2.00
20 IO 2 35 24 1 5.27 2.00
22 180 4 47 132 1 8.27 2.00
23 180 4 47 132 1 8.27 2.00
24 180 4 47 132 1 8.27 2.00
46 300 8 31 88 1 5.27 2.00
53 360 2 47 72 1 5.27 2.00
67 240 3 47 72 1 5.27 2.00
70 240 3 47 72 1 5.27 2.00
104 360 3 35 84 1 5.27 2.00
110 360 3 35 84 1 5.27 2.00
113 300 4 47 72 1 5.27 2.00
117 360 3 47 72 1 5.27 2.00
118 360 3 47 72 1 5.27 2.00
125 324 2 47 72 1 5.27 2.00
-----------------------------------------------------------------------
PRIMARY MASTER EXCESS PRIMARY EXCESS TRUSTEE
LOAN SERV. FEE SERV. FEE SERV. FEE FEE
NO. RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
-----------------------------------------------------------------------
5 1.00 2.00 0.00 0.27
8 1.00 2.00 0.00 0.27
15 1.00 2.00 0.00 0.27
16 1.00 2.00 0.00 0.27
17 1.00 2.00 0.00 0.27
18 1.00 2.00 0.00 0.27
20 1.00 2.00 0.00 0.27
22 4.00 2.00 0.00 0.27
23 4.00 2.00 0.00 0.27
24 4.00 2.00 0.00 0.27
46 1.00 2.00 0.00 0.27
53 1.00 2.00 0.00 0.27
67 1.00 2.00 0.00 0.27
70 1.00 2.00 0.00 0.27
104 1.00 2.00 0.00 0.27
110 1.00 2.00 0.00 0.27
113 1.00 2.00 0.00 0.27
117 1.00 2.00 0.00 0.27
118 1.00 2.00 0.00 0.27
125 1.00 2.00 0.00 0.27
SCHEDULE V
XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL LOAN SCHEDULE
BSCMSI 2001 TOP4 MORTGAGE LOAN SCHEDULE (SCHEDULE V)
MSDWMC
------------------------------------------------------------------------------------------------------------------------------------
AGGREGATE ORIG. REM.
LOAN CUT-OFF MORTGAGE MONTHLY NOTE TERM TERM
NO. SELLER PROPERTY NAME DATE BALANCE RATE PAYMENT DATE (MOS) (MOS)
------------------------------------------------------------------------------------------------------------------------------------
1 XXXXXX 0000 Avenue of the Americas $75,000,000 6.520% $475,037.92 6/1/01 60 55
4 MSDWMC Bridgewater Promenade $30,927,932 7.560% $218,031.55 6/13/01 120 116
9 MSDWMC Metaldyne Portfolio - Plymouth (I) $6,828,823 7.480% $47,789.63 6/29/01 120 116
10 MSDWMC Metaldyne Portfolio - Twinsburg (I) $3,347,756 7.480% $23,426.28 6/29/01 120 116
11 MSDWMC Metaldyne Portfolio - Niles (I) $2,949,492 7.480% $20,636.71 6/29/01 118 116
12 MSDWMC Metaldyne Portfolio - Rome (I) $1,908,004 7.480% $13,352.98 6/29/01 120 116
13 MSDWMC Metaldyne Portfolio - Solon (I) $1,629,719 7.480% $11,408.60 6/29/01 120 116
21 MSDWMC Feather Down Shopping Center $12,832,171 7.180% $87,050.38 8/2/01 120 118
25 MSDWMC Pathmark-Castle Center $12,456,148 7.670% $88,861.49 4/24/01 120 114
37 MSDWMC Greenspring Shopping Center $9,975,172 7.330% $68,761.09 6/20/01 120 116
41 MSDWMC Powder Mill Square $8,984,367 7.670% $63,980.27 7/13/01 120 117
54 MSDWMC Amboy: Macy's - Carlsbad, CA $6,854,090 7.000% $56,014.41 8/1/01 123 120
59 MSDWMC Roselle Shopping Center $6,089,949 7.040% $45,397.31 8/19/98 120 82
61 MSDWMC Parkway Business Center $5,981,930 7.640% $42,529.55 5/14/01 120 115
68 MSDWMC Ganttown Plaza $5,330,423 7.380% $37,003.91 3/28/01 120 113
71 MSDWMC 000 Xxxxxxxxxx Xxxx Xxxxxx Xxxxxxxx $5,253,534 7.290% $42,018.47 5/21/01 120 115
73 MSDWMC 0000 Xxxxxx Xxx $5,078,151 7.300% $34,861.28 8/13/01 120 118
75 MSDWMC Xxxx Office Centre $4,848,842 7.270% $33,253.90 5/17/01 120 115
89 MSDWMC Xxxxxx Portfolio - 0000 Xxx Xxxxxx Xxxx (C) $1,303,089 7.490% $17,205.13 7/2/01 120 116
90 MSDWMC Xxxxxx Portfolio - 00000 Xxxxxxxx Xxxx (C) $1,221,967 7.490% $15,700.92 7/2/01 120 116
91 MSDWMC Xxxxxx Portfolio - 0000 Xxxx Xxxxx Xxxxxx (C) $1,115,148 7.490% $14,463.42 7/2/01 120 116
92 MSDWMC Xxxxxx Portfolio - 000 Xxxx Xxxx Xxxxxx (C) $723,618 7.490% $9,299.08 7/2/01 120 116
122 MSDWMC Pelican Portfolio - 0000 Xxxxxx Xxxxxxxxx (D) $1,175,855 7.560% $15,759.84 6/14/01 114 110
123 MSDWMC Pelican Portfolio - 0000 Xxxxx Xxxxxxxxxx Xxxxx (D) $1,130,109 7.560% $16,670.21 6/14/01 114 110
127 MSDWMC Herford Portfolio - 0000 Xxxx Xxxxx Xxxx (E) $1,152,938 7.560% $18,131.30 7/2/01 120 116
128 MSDWMC Herford Portfolio - 5940 Beach Boulevard (E) $1,085,619 7.560% $14,983.20 7/2/01 120 116
130 MSDWMC Razor Portfolio - 000 Xxxxx Xxxxx Xxxx (F) $567,884 7.560% $9,285.96 7/2/01 120 116
131 MSDWMC Razor Portfolio - 0000 Xxxxxx Xxxxx (F) $531,454 7.560% $8,651.84 7/2/01 120 116
132 MSDWMC Razor Portfolio - 000 Xxxx Xxxxxxxxxxx Xxxx (F) $520,770 7.560% $8,502.62 7/2/01 120 116
133 MSDWMC Razor Portfolio - 00000 Xxxxx Xxxx (F) $482,295 7.560% $7,866.73 7/2/01 120 116
141 MSDWMC Devon Portfolio - 0000 Xxxx Xxxxx Xxxxxxx (G) $879,254 7.670% $14,081.69 7/2/01 108 104
142 MSDWMC Devon Portfolio - 0000 Xxxx Xxxxxx (G) $769,819 7.670% $12,204.66 7/2/01 108 104
156 MSDWMC Sheffield Portfolio - 00 Xxxx Xxxxxxx Xxxx (H) $824,710 7.490% $12,208.60 7/2/01 114 110
157 MSDWMC Sheffield Portfolio - 0000 Xxxxxxx Xxxxxx (H) $436,659 7.490% $6,182.48 7/2/01 114 110
TOTAL: $220,197,691
---------------------------------------------------------------------------------------------------------------------
ORIG. PREPAYMENT DESCRIPTION MASTER
LOAN AMORT. LOCKOUT YM ADMIN. COST SERV. FEE
NO. (MOS) SEASONING PERIOD DEF DEF/YM1 YM2 YM1 YM0.75 OPEN FORMULA RATE (BPS) RATE (BPS)
---------------------------------------------------------------------------------------------------------------------
1 360 5 29 28 3 5.27 2.00
4 360 4 28 88 4 5.27 2.00
9 360 4 28 88 4 5.27 2.00
10 360 4 28 88 4 5.27 2.00
11 358 2 26 88 4 5.27 2.00
12 360 4 28 88 4 5.27 2.00
13 360 4 28 88 4 5.27 2.00
21 360 2 26 90 4 5.27 2.00
25 360 6 30 86 4 12.27 2.00
37 360 4 28 88 4 5.27 2.00
41 360 3 27 89 4 15.27 2.00
54 218 3 27 89 7 5.27 2.00
59 300 38 62 54 4 5.27 2.00
61 360 5 29 87 4 5.27 2.00
68 360 7 31 82 7 5.27 2.00
71 240 5 29 87 4 5.27 2.00
73 360 2 26 90 4 5.27 2.00
75 360 5 29 87 4 5.27 2.00
89 107 4 28 85 7 5.27 2.00
90 111 4 28 85 7 5.27 2.00
91 109 4 28 85 7 5.27 2.00
92 111 4 28 85 7 5.27 2.00
122 105 4 28 79 7 5.27 2.00
123 93 4 28 79 7 5.27 2.00
127 85 4 28 85 7 5.27 2.00
128 101 4 28 85 7 5.27 2.00
130 81 4 28 85 7 5.27 2.00
131 82 4 28 85 7 5.27 2.00
132 82 4 28 85 7 5.27 2.00
133 82 4 28 85 7 5.27 2.00
141 84 4 28 73 7 5.27 2.00
142 85 4 28 73 7 5.27 2.00
156 92 4 28 79 7 5.27 2.00
157 97 4 28 79 7 5.27 2.00
-----------------------------------------------------------------------
PRIMARY MASTER EXCESS PRIMARY EXCESS TRUSTEE
LOAN SERV. FEE SERV. FEE SERV. FEE FEE
NO. RATE (BPS) RATE (BPS) RATE (BPS) RATE (BPS)
-----------------------------------------------------------------------
1 1.00 2.00 0.00 0.27
4 1.00 2.00 0.00 0.27
9 1.00 2.00 0.00 0.27
10 1.00 2.00 0.00 0.27
11 1.00 2.00 0.00 0.27
12 1.00 2.00 0.00 0.27
13 1.00 2.00 0.00 0.27
21 1.00 2.00 0.00 0.27
25 7.00 3.00 0.00 0.27
37 1.00 2.00 0.00 0.27
41 10.00 3.00 0.00 0.27
54 1.00 2.00 0.00 0.27
59 1.00 2.00 0.00 0.27
61 1.00 2.00 0.00 0.27
68 1.00 2.00 0.00 0.27
71 1.00 2.00 0.00 0.27
73 1.00 2.00 0.00 0.27
75 1.00 2.00 0.00 0.27
89 1.00 2.00 0.00 0.27
90 1.00 2.00 0.00 0.27
91 1.00 2.00 0.00 0.27
92 1.00 2.00 0.00 0.27
122 1.00 2.00 0.00 0.27
123 1.00 2.00 0.00 0.27
127 1.00 2.00 0.00 0.27
128 1.00 2.00 0.00 0.27
130 1.00 2.00 0.00 0.27
131 1.00 2.00 0.00 0.27
132 1.00 2.00 0.00 0.27
133 1.00 2.00 0.00 0.27
141 1.00 2.00 0.00 0.27
142 1.00 2.00 0.00 0.27
156 1.00 2.00 0.00 0.27
157 1.00 2.00 0.00 0.27
SCHEDULE VI
LIST OF ESCROW ACCOUNTS NOT CURRENTLY
ELIGIBLE ACCOUNTS
Schedule VI to The Pooling and Servicing Agreement (Principal)
List of Escrow Accounts not Currently Eligible Accounts
NONE
Schedule VI to the Pooling and Servicing Agreement (JHREF)
List of Mortgage Loans with Escrow Accounts not currently Eligible Accounts:
JHREF LOAN
NO. TAB NO. PROPERTY NAME OR IDENTIFICATION
---------- ------- -------------------------------
3212752 00 Xxxxxxxx Xxxxx
-------------------------------------------
3212756 56 Highland House Villas
-------------------------------------------
3212424 00 Xxxxxx Xxxxxx Shopping Center
Schedule VI to The Pooling and Servicing Agreement (MSDWMC)
List of Escrow Accounts not Currently Eligible Accounts
NONE
SCHEDULE VI [Bear]
List of Escrow Accounts Not Currently Eligible Accounts (Section 8.3(e))
None.
Schedule VI to The Pooling and Servicing Agreement (Xxxxx)
List of Escrow Accounts not Currently Eligible Accounts
NONE
SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR
WHICH A REPORT UNDER SECTION 5.1(G)
IS REQUIRED
POOL 13
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SCHEDULE VII - UPFRONT RESERVES, IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING WORK
- COMPLETION OF ADDITIONAL CONSTRUCTION
TAB NO. LOAN NUMBER PROPERTY NAME - ENVIRONMENTAL REMEDIATION OT SIMILAR PROJECTS
------------------------------------------------------------------------------------------------------------------------------------
7 310900219 York Galleria
------------------------------------------------------------------------------------------------------------------------------------
8 310900433 Marina Boulevard - Prelim
------------------------------------------------------------------------------------------------------------------------------------
10 310900395A Xxxx - Xxxxxxx - San Xxxx
------------------------------------------------------------------------------------------------------------------------------------
29 310900395B Xxxx - Xxxxxxx - Scottsdale
------------------------------------------------------------------------------------------------------------------------------------
30 310900395C Xxxx - Xxxxxxx - Lawndale
------------------------------------------------------------------------------------------------------------------------------------
31 310900395D Xxxx - Xxxxxxx - Oxnard
------------------------------------------------------------------------------------------------------------------------------------
32 310900395E Xxxx - Xxxxxxx - Tropicana
------------------------------------------------------------------------------------------------------------------------------------
33 310900395F Xxxx - Xxxxxxx - Cotati
------------------------------------------------------------------------------------------------------------------------------------
34 310900395G Xxxx - Xxxxxxx - Cathedral City
------------------------------------------------------------------------------------------------------------------------------------
35 310900395H Xxxx - Xxxxxxx - Colton
------------------------------------------------------------------------------------------------------------------------------------
36 310900395I Xxxx - Xxxxxxx - Albuquerque
------------------------------------------------------------------------------------------------------------------------------------
37 310900246 Campus Commons Retirement Apts
------------------------------------------------------------------------------------------------------------------------------------
47 920900414 Burnt Mill Business Park
------------------------------------------------------------------------------------------------------------------------------------
53 310900465 Pleasant Valley Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
61 310900452 Laguna Hills Business Park
------------------------------------------------------------------------------------------------------------------------------------
79 310900538 Xxxx Building
------------------------------------------------------------------------------------------------------------------------------------
84 310900221 TMI Products Building
------------------------------------------------------------------------------------------------------------------------------------
85 310900480 Best Buy, Erie, Pennsylvania
------------------------------------------------------------------------------------------------------------------------------------
90 310900145 Butte Community Employment Center
------------------------------------------------------------------------------------------------------------------------------------
92 310900474 Lowes Vacaville
------
97 310900440 Golf Terrace Apartments $75,000
------
101 310900416 Xxxxxxx Boulevard
------------------------------------------------------------------------------------------------------------------------------------
103 310900477 Imperial Village Apartments
------------------------------------------------------------------------------------------------------------------------------------
106 310900367 Colonial Square Shopping Center
------------------------------------------------------------------------------------------------------------------------------------
111 310900407 Office Depot - Alhambra
------------------------------------------------------------------------------------------------------------------------------------
115 310900464 Agoura Business Center
------------------------------------------------------------------------------------------------------------------------------------
127 310900441 Lo Garto Apartments
------------------------------------------------------------------------------------------------------------------------------------
129 310900449 Office Depot - Folsom
------------------------------------------------------------------------------------------------------------------------------------
136 310900429 Plymouth Court
------------------------------------------------------------------------------------------------------------------------------------
139 310900470 Baseline Business Center
------------------------------------------------------------------------------------------------------------------------------------
140 310900421 Franciscan Business Park
------------------------------------------------------------------------------------------------------------------------------------
143 920900287 Washington Courthouse Apartments
------------------------------------------------------------------------------------------------------------------------------------
144 310900386 Columbine Knolls Village
------------------------------------------------------------------------------------------------------------------------------------
152 310900398 Broadview Business Center
------------------------------------------------------------------------------------------------------------------------------------
153 310900450 Systems Parkway Building
------------------------------------------------------------------------------------------------------------------------------------
154 310900424 Danray Distribution Center
------------------------------------------------------------------------------------------------------------------------------------
155 310900401 Stoneybrook Apartments
------------------------------------------------------------------------------------------------------------------------------------
POOL 13
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE VII - UPFRONT RESERVES, IN EXCESS OF $75,000, FOR:
- SPECIFIC IMMEDIATE ENGINEERING WORK
- COMPLETION OF ADDITIONAL CONSTRUCTION
TAB NO. LOAN NUMBER PROPERTY NAME - ENVIRONMENTAL REMEDIATION OT SIMILAR PROJECTS
------------------------------------------------------------------------------------------------------------------------------------
156 310900446 31 Journey
------------------------------------------------------------------------------------------------------------------------------------
157 310900406 Wilshire Blvd.
------------------------------------------------------------------------------------------------------------------------------------
160 310900402 Xxxxxxxx Centre West
------------------------------------------------------------------------------------------------------------------------------------
161 310900442 Laurenbrook Apartment Complex
------------------------------------------------------------------------------------------------------------------------------------
162 310900403 Sunrise Business Park
------------------------------------------------------------------------------------------------------------------------------------
163 310900423 Walgreen's Norman, OK
------------------------------------------------------------------------------------------------------------------------------------
164 310900478 U-Move 'n Store - Corona
------------------------------------------------------------------------------------------------------------------------------------
165 310900313 Santa Xxxx Plaza
------------------------------------------------------------------------------------------------------------------------------------
166 310900390 Hubcap Building
------------------------------------------------------------------------------------------------------------------------------------
167 310900382 Wheatridge Apartments
------------------------------------------------------------------------------------------------------------------------------------
168 310900359 XxXxxxxxx Industrial
------------------------------------------------------------------------------------------------------------------------------------
170 310900374 River Bluff Apartment Homes
------------------------------------------------------------------------------------------------------------------------------------
171 310900451 Walgreens Mundelein
------------------------------------------------------------------------------------------------------------------------------------
174 310900420 Walgreen's - Springfield, MO
------------------------------------------------------------------------------------------------------------------------------------
175 920900288 Mt. Sterling Apartments
------------------------------------------------------------------------------------------------------------------------------------
177 310900413 000 Xxxxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
179 310900379 Candlewood Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
180 310900435 Xxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
181 310900391 Lafayette Shopping Center
------------------------------------------------------------------------------------------------------------------------------------
182 920900443 North by Northeast Shoppes
------------------------------------------------------------------------------------------------------------------------------------
183 920900444 Glendale Shoppes
------------------------------------------------------------------------------------------------------------------------------------
184 920900445 Shadeland Crossing
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxx Xx Xxxxxx Xxxxx Apartments
------------------------------------------------------------------------------------------------------------------------------------
POOL 13
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SCHEDULE VII - UPFRONT RESERVES COMMENTS
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the funds for the fire damage be escrowed with Chicago Title Company who will
administer the draw requests. Repairs have begun and are anticipated to be
completed within the next couple of months.
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SCHEDULE VII
CERTAIN ESCROW ACCOUNTS FOR WHICH A REPORT UNDER SECTION 5.1(G) IS REQUIRED
LOAN NO. PROPERTY NAME
----------- ------------------------------------
45 Northridge Shopping Center
49 The Xxxxxx Xxxxxx Xxxxxxxx
00 000 Xxxxx Xxxx
161 Summit Terrace Apartments
108 Airborne Express
52 North Mountain Village
51 The Center at Clear Lake
00 Xxxxxxxxxx Xxxxxx Shopping Center
83 38 Forge Park Drive
SCHEDULE VII
Certain Escrow Accounts for Which a Report Under Section 5.1(g) is Required
Loan No. Loan Name Escrow Amount
------- --------- -------------
67 Xxxxxxxxxx Tower $77,317
Schedule VII to the Pooling and Servicing Agreement (MSDWMC)
List of Escrow Accounts for which a report under Section 5.1(g) of PSA is
required
NONE
Schedule VII to the Pooling and Servicing Agreement (JHREF)
List of Escrow Accounts for which a report under Section 5.1(g) of PSA is
required:
-----------------------------------------------------------------------------
JHREF LOAN TAB NO. PROPERTY NAME OR INDENTIFICATION
NO.
-----------------------------------------------------------------------------
3212424 00 Xxxxxx Xxxxxx Shopping Center
3212427 66 Bridgewood Apartments
3212412 000 Xxxxxx Xxxxx Apartments
-----------------------------------------------------------------------------
SCHEDULE VIII
LIST OF MORTGAGORS THAT ARE THIRD PARTY
BENEFICIARIES UNDER SECTION 2.3(A)
Schedule VIII to The Pooling and Servicing Agreement (Xxxxx)
List of Mortgagors under Crossed Loans that are Third Party Beneficiaries
NONE
Schedule VIII to The Pooling and Servicing Agreement (Principal)
List of Mortgagors under Crossed Loans that are Third Party Beneficiaries
loan no. 752873-JEEH Partnership, a Pennsylvania limited partnership
loan no. 752845-Coventry Associates, a Pennsylvania limited partnership
Schedule VIII to The Pooling and Servicing Agreement (JHREF)
List of Mortgagors under Crossed Loans that are Third Party Beneficiaries
NONE
SCHEDULE VIII [Bear]
List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
Loan No. Loan Name Mortgagor Name
-------- --------- --------------
15 Sands Lake Corners Shopping Center Inland Southeast Sand Lakes, LLC
16 Petsmart Portfolio--Chattanooga(II) Inland Southeast Chattanooga LLC
17 Petsmart Portfolio--Fredericksburg (II) Inland Southeast Fredericksburg LLC
18 Petsmart Portfolio--Daytona Beach (II) Inland Southeast Daytona LLC
SCHEDULE IX
Rates Used in Determination of Class X Pass-Through Rate
SCHEDULE TX
Rates Used in Determination of Class X Pass-Through Rates
12/15/01 7.2432%
01/15/02 7.2431
02/15/02 7.2430
03/15/02 7.2436
04/15/02 7.4533
05/15/02 7.2427
06/15/02 7.4531
07/15/02 7.2426
08/15/02 7.4530
09/15/02 7.4529
10/15/02 7.2424
11/15/02 7.4529
12/15/02 7.2423
01/15/03 7.2423
02/15/03 7.2423
03/15/03 7.2429
04/15/03 7.4526
05/15/03 7.2421
06/15/03 7.4525
07/15/03 7.2420
08/15/03 7.4525
09/15/03 7.4524
10/15/03 7.2419
11/15/03 7.4524
12/15/03 7.2418
01/15/04 7.4523
02/15/04 7.2418
03/15/04 7.2420
04/15/04 7.4522
05/15/04 7.2417
06/15/04 7.4522
07/15/04 7.2416
08/15/04 7.4521
09/15/04 7.4521
10/15/04 7.2415
11/15/04 7.4520
12/15/04 7.2415
01/15/05 7.2415
02/15/05 7.2414
03/15/05 7.2422
04/15/05 7.4519
05/15/05 7.2413
06/15/05 7.4518
07/15/05 7.2413
08/15/05 7.4518
09/15/05 7.4518
10/15/05 7.2412
11/15/05 7.4517
12/15/05 7.2411
01/15/06 7.2411
02/15/06 7.2411
03/15/06 7.2418%
04/15/06 7.4516
05/15/06 7.2410
06/15/06 7.4515
07/15/06 7.3155
08/15/06 7.5255
09/15/06 7.5306
10/15/06 7.3385
11/15/06 7.5515
12/15/06 7.3386
01/15/07 7.3386
02/15/07 7.3386
03/15/07 7.3396
04/15/07 7.5516
05/15/07 7.3387
06/15/07 7.5517
07/15/07 7.3387
08/15/07 7.5518
09/15/07 7.5518
10/15/07 7.3388
11/15/07 7.5519
12/15/07 7.3388
01/15/08 7.5520
02/15/08 7.3389
03/15/08 7.3396
04/15/08 7.5562
05/15/08 7.3452
06/15/08 7.5613
07/15/08 7.3590
08/15/08 7.5878
09/15/08 7.5933
10/15/08 7.3795
11/15/08 7.6107
SCHEDULE X
SCHEDULE X
00 (Xxxxxxxx Xxxxx)
00 (Xxxxx Xxxx Xxxxxxxx Xxxx)
00 (Xxxxxxx Xxxxx Xxxxxxxxxx)
00 (Amboy: Macy's)
00 (Xxxx Xxxxx Xxxxxxxx)
89 (Xxxxxx Portfolio)
90 (Xxxxxx Portfolio)
91 (Xxxxxx Portfolio)
92 (Xxxxxx Portfolio)
122 (Pelican Portfolio)
123 (Pelican Portfolio)
127 (Herford Portfolio)
128 (Herford Portfolio)
130 (Razor Portfolio)
131 (Razor Portfolio)
132 (Razor Portfolio)
133 (Razor Portfolio)
141 (Devon Portfolio)
142 (Devon Portfolio)
156 (Sheffield Portfolio)
000 (Xxxxxxxxx Xxxxxxxxx)
