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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP., Depositor
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Servicer
ARCAP SERVICING, INC.,
Special Servicer
U.S. BANK NATIONAL ASSOCIATION,
Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
POOLING AND SERVICING AGREEMENT
Dated as of
September 30, 2003
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2003-LN1
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms................................................
Section 1.02 Certain Calculations.........................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.................................
Section 2.02 Acceptance by Trustee........................................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties........
Section 2.04 Execution of Certificates; Creation of Loan REMIC Regular
Interests...................................................
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
Section 2.06 Grantor Trust Designations...................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans......
Section 3.02 Collection of Mortgage Loan Payments.........................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..........................................
Section 3.04 The Certificate Account, the Loan REMIC Distribution
Account, the Lower-Tier and Upper-Tier Distribution
Accounts, the Companion Distribution Account, the
Gain-on-Sale Reserve Account and the Excess Interest
Distribution Account........................................
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts and the Companion Distribution
Account.....................................................
Section 3.06 Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account....................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements....
Section 3.09 Realization Upon Defaulted Mortgage Loans....................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..............
Section 3.11 Servicing Compensation.......................................
Section 3.12 Inspections; Collection of Financial Statements..............
Section 3.13 Annual Statement as to Compliance............................
Section 3.14 Reports by Independent Public Accountants....................
Section 3.15 Access to Certain Information................................
Section 3.16 Title to REO Property; REO Account...........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties..........
Section 3.19 Additional Obligations of Servicer and Special Servicer......
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 [RESERVED]...................................................
Section 3.24 Representations, Warranties and Covenants of the Servicer....
Section 3.25 Representations, Warranties and Covenants of the Special
Servicer....................................................
Section 3.26 Interest Reserve Account.....................................
Section 3.27 Excess Interest Distribution Account.........................
Section 3.28 Directing Certificateholder Contact with Servicer............
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of
Directing Certificateholder.................................
Section 3.30 AB Intercreditor Agreements..................................
Section 3.31 Companion Paying Agent.......................................
Section 3.32 Companion Register...........................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..............................................
Section 4.03 P&I Advances.................................................
Section 4.04 Allocation of Collateral Support Deficit.....................
Section 4.05 Appraisal Reductions.........................................
Section 4.06 Certificate Deferred Interest................................
Section 4.07 Grantor Trust Reporting......................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.............................................
Section 5.02 Registration of Transfer and Exchange of Certificates........
Section 5.03 Book-Entry Certificates......................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons Deemed Owners........................................
Section 5.06 Certificate Ownership Certification..........................
Section 5.07 Appointment of Paying Agent..................................
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer....................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer............................
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.............................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.......
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer........................................
Section 6.06 The Servicer and the Special Servicer as Certificate Owner...
Section 6.07 The Directing Certificateholder and the One Post Office
Square Representative.......................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.................................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Trustee as Maker of Advances.................................
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of Trustee and Paying Agent...........................
Section 8.02 Certain Matters Affecting the Trustee and the Paying Agent...
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans...............
Section 8.04 Trustee or Paying Agent May Own Certificates.................
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent.............
Section 8.06 Eligibility Requirements for Trustee and the Paying Agent....
Section 8.07 Resignation and Removal of the Trustee and Paying Agent......
Section 8.08 Successor Trustee or Paying Agent............................
Section 8.09 Merger or Consolidation of Trustee or Paying Agent...........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Access to Certain Information................................
Section 8.13 Representations and Warranties of the Trustee................
Section 8.14 Representations and Warranties of the Paying Agent...........
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Use of Agents................................................
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent...........................................
Section 10.04 Appointment of REMIC Administrators..........................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders...................
Section 11.04 Governing Law................................................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Successors and Assigns; Beneficiaries........................
Section 11.09 Article and Section Headings.................................
Section 11.10 Notices to the Rating Agencies...............................
EXHIBITS
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-1A Certificate
Exhibit A-4 [Reserved]
Exhibit A-5 [Reserved]
Exhibit A-6 Form of Class X-1 Certificate
Exhibit A-7 Form of Class X-2 Certificate
Exhibit A-8 Form of Class B Certificate
Exhibit A-9 Form of Class C Certificate
Exhibit A-10 Form of Class D Certificate
Exhibit A-11 Form of Class E Certificate
Exhibit A-12 Form of Class F Certificate
Exhibit A-13 Form of Class G Certificate
Exhibit A-14 Form of Class H Certificate
Exhibit A-15 Form of Class J Certificate
Exhibit A-16 Form of Class K Certificate
Exhibit A-17 Form of Class L Certificate
Exhibit A-18 Form of Class M Certificate
Exhibit A-19 Form of Class N Certificate
Exhibit A-20 Form of Class P Certificate
Exhibit A-21 Form of Class NR Certificate
Exhibit A-22 Form of Class PS-1 Certificate
Exhibit A-23 Form of Class PS-2 Certificate
Exhibit A-24 Form of Class PS-3 Certificate
Exhibit A-25 Form of Class PS-4 Certificate
Exhibit A-26 Form of Class PS-5 Certificate
Exhibit A-27 Form of Class PS-6 Certificate
Exhibit A-28 Form of Class PS-7 Certificate
Exhibit A-29 Form of Class R Certificate
Exhibit A-30 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate
during Restricted Period
Exhibit L Class X Reference Rates
Exhibit M Form of CMSA Investor Reporting Package
Exhibit M-1 Form of CMSA Bond Level File
Exhibit M-2 Form of CMSA Collateral Summary File
Exhibit M-3 Form of CMSA Financial File
Exhibit M-4 Form of CMSA Loan Periodic Update File
Exhibit M-5 Form of CMSA Loan Setup File
Exhibit M-6 Form of CMSA Property File
Exhibit M-7 Form of CMSA Comparative Financial Status Report
Exhibit M-8 Form of CMSA Delinquent Loan Status Report
Exhibit M-9 Form of CMSA Historical Liquidation Report
Exhibit M-10 Form of CMSA Historical Loan Modification Report
Exhibit M-11 Form of CMSA NOI Adjustment Worksheet
Exhibit M-12 Form of CMSA Operating Statement Analysis Report
Exhibit M-13 Form of CMSA REO Status Report
Exhibit M-14 CMSA Servicer Watchlist Criteria
Exhibit M-15 CMSA Special Servicer Loan File
Exhibit M-16 CMSA Loan Level Reserve/LOC Report
Exhibit M-17 CMSA Reconciliation of Funds
Exhibit N Controlling Class Certificateholder's Reports Checklist
Exhibit O [Reserved]
Exhibit P Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit Q Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry during
Restricted Period
Exhibit R Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit S Form Certification to be Provided with Form 10-K
Exhibit T-1 Form of Certification to be Provided to Depositor by Paying
Agent
Exhibit T-2 Form of Certification to be Provided to Depositor by
Servicer
Exhibit T-3 Form of Certification to be Provided to Depositor by
Special Servicer
Exhibit U Initial Companion Holders
Exhibit V ARCap Naming Convention
Exhibit W Form of Notice and Certification regarding Defeasance of
Mortgage Loan
Exhibit X Information Request From Certificateholder, Beneficial
Owner or Prospective Purchaser
Exhibit Z Trustee Certification/Exception Report
SCHEDULES
Schedule 1 [Reserved]
Schedule 2 Mortgage Loans Containing Additional Debt
Schedule 3 [Reserved]
Schedule 4 Mortgage Loans which Initially Pay Interest Only
Schedule 5 [Reserved]
Schedule 6 One Post Office Square Mortgage Loan Amortization Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of September 30, 2003, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Xxxxx Fargo Bank, National Association, as
Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank National
Association, as Trustee, and LaSalle Bank National Association, as Paying Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily and manufactured housing community mortgage loans (the "Mortgage
Loans"). As provided herein, the Paying Agent shall elect or shall cause an
election to be made to treat the Trust Fund (exclusive of the Excess Interest
and the Excess Interest Distribution Account) for federal income tax purposes as
three separate real estate mortgage investment conduits (the "Loan REMIC,"
"Upper-Tier REMIC" and "Lower-Tier REMIC" as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class NR Certificates.
LOAN REMIC
An election will be made to treat the segregated pool of assets
consisting of the One Post Office Square B Note and certain other related assets
subject to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Loan REMIC." The Loan REMIC
Residual Interest will represent the sole class of "residual interests" in the
Loan REMIC for purposes of the REMIC Provisions under federal income tax law,
and will be represented by the Class LR Certificates. The Class KPS-1
Uncertificated Interest, the Class KPS-2 Uncertificated Interest, the Class
KPS-3 Uncertificated Interest, the Class KPS-4 Uncertificated Interest, the
Class KPS-5 Uncertificated Interest, the Class KPS-6 Uncertificated Interest and
the Class KPS-7 Uncertificated Interest will not be certificated and will be
held by the Lower-Tier REMIC.
The following table sets forth the Original Loan REMIC Principal
Amounts, per annum rates of interest for the Loan REMIC Regular Interests and
the Related Certificates related to the One Post Office Square B Note:
Original Loan
Interest REMIC Related
Class Designation Rate Principal Amount Certificate
----------------- ---- ---------------- -----------
Class KPS-1 Uncertificated Interest (1) $11,100,000 Class PS-1
Class KPS-2 Uncertificated Interest (1) $ 5,400,000 Class PS-2
Class KPS-3 Uncertificated Interest (1) $ 5,300,000 Class PS-3
Class KPS-4 Uncertificated Interest (1) $ 6,500,000 Class PS-4
Class KPS-5 Uncertificated Interest (1) $ 6,500,000 Class PS-5
Class KPS-6 Uncertificated Interest (1) $10,800,000 Class PS-6
Class KPS-7 Uncertificated Interest (1) $ 9,400,000 Class PS-7
(1) The interest rate for the Class KPS-1, Class KPS-2, Class KPS-3, Class
KPS-4, Class KPS-5, Class KPS-6 and Class KPS-7 Uncertificated Interests
for each Distribution Date shall be the Pass-Through Rate for the Class
PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5, Class PS-6 and Class
PS-7 Certificates, respectively, for such Distribution Date.
The ownership interest in the One Post Office Square B Note, as part
of the Loan REMIC, will be split into seven undivided ownership interests in
such Loan REMIC (the "PS-1 Component," "PS-2 Component," "PS-3 Component," "PS-4
Component," "PS-5 Component," "PS-6 Component" and "PS-7 Component"
(collectively, the "PS Components").
The following table describes certain information regarding the One
Post Office Square B Note and the PS Components.
One Post Office Related
Component Square B Note Corresponding Loan Class PS
Component Balance Remittance Rate* REMIC Interest Certificate
--------- ------- ---------------- -------------- -----------
PS-1 Component $11,100,000 5.0720% Class KPS-1 Uncertificated Interest Class PS-1
PS-2 Component $ 5,400,000 5.1400% Class KPS-2 Uncertificated Interest Class PS-2
PS-3 Component $ 5,300,000 5.4600% Class KPS-3 Uncertificated Interest Class PS-3
PS-4 Component $ 6,500,000 5.5570% Class KPS-4 Uncertificated Interest Class PS-4
PS-5 Component $ 6,500,000 6.0410% Class KPS-5 Uncertificated Interest Class PS-5
PS-6 Component $10,800,000 7.7490% Class KPS-6 Uncertificated Interest Class PS-6
PS-7 Component $ 9,400,000 8.2283% Class KPS-7 Uncertificated Interest Class PS-7
------------
* Represents the per annum Mortgage Rate, net of the related Administrative
Cost Rate, at which interest will accrue on the PS Components based on the
actual number of days elapsed and a 360-day year.
LOWER-TIER REMIC
The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class
LA-1-5, Class LA-1-6, Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class
LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LB, Class LC, Class LD, Class LE,
Class LF-1, Class LF-2, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class
LJ, Class LK, Class LL-1, Class LL-2, Class LM, Class LN, Class LP, Class LNR,
Class LPS-1, Class LPS-2, Class LPS-3, Class LPS-4, Class LPS-5, Class LPS-6 and
Class LPS-7 Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
Class Original Lower-Tier
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Class LA-1-1 (1) $39,641,000
Class LA-1-2 (1) $43,102,000
Class LA-1-3 (1) $44,269,000
Class LA-1-4 (1) $41,908,000
Class LA-1-5 (1) $63,149,000
Class LA-1-6 (1) $24,971,000
Class LA-1A-1 (1) $4,693,000
Class LA-1A-2 (1) $18,920,000
Class LA-1A-3 (1) $19,091,000
Class LA-1A-4 (1) $17,997,000
Class LA-1A-5 (1) $39,484,000
Class LA-1A-6 (1) $14,893,000
Class LA-1A-7 (1) $17,753,000
Class LA-1A-8 (1) $230,479,000
Class LA-2-1 (1) $25,321,000
Class LA-2-2 (1) $42,513,000
Class LA-2-3 (1) $313,660,000
Class LB (1) $34,547,000
Class LC (1) $13,518,000
Class LD (1) $30,040,000
Class LE (1) $15,020,000
Class LF-1 (1) $5,443,000
Class LF-2 (1) $11,079,000
Class LG-1 (1) $6,589,000
Class LG-2 (1) $6,930,000
Class LH-1 (1) $9,615,000
Class LH-2 (1) $6,907,000
Class LJ (1) $6,008,000
Class LK (1) $12,016,000
Class LL-1 (1) $768,000
Class LL-2 (1) $5,240,000
Class LM (1) $10,514,000
Class LN (1) $3,004,000
Class LP (1) $3,004,000
Class LNR (1) $19,526,937
Class LPS-1 (2) $11,100,000
Class LPS-2 (2) $5,400,000
Class LPS-3 (2) $5,300,000
Class LPS-4 (2) $6,500,000
Class LPS-5 (2) $6,500,000
Class LPS-6 (2) $10,800,000
Class LPS-7 (2) $9,400,000
Class LR None(3) None(3)
------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for the Class LPS-1, Class LPS-2, Class LPS-3, Class
LPS-4, Class LPS-5, Class LPS-6 and Class LPS-7 Uncertificated Interests
for any Distribution Date shall be the Pass-Through Rate for the Class
PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5, Class PS-6 and Class
PS-7 Certificates, respectively, for such Distribution Date.
(3) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
UPPER-TIER REMIC
The Class A-1, Class A-2, Class A-1A, 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 NR (other than with respect to the right to receive Excess Interest),
Class P, Class PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5, Class PS-6,
Class PS-7, Class X-1 and Class X-2 Certificates will evidence "regular
interests" in the Upper-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Upper-Tier REMIC created hereunder will be evidenced
by the Class R Certificates.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or Notional Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
(the "Original Ratings") for each Class of Certificates comprising the interests
in the Upper-Tier REMIC created hereunder:
Original
Initial Certificate
Pass-Through Balance or Ratings(1)
Rate Notional Amount(1) (Xxxxx'x/S&P)
------------- ------------------- ---------------
Class A-1 4.1340% $ 257,040,000 Aaa/AAA
Class A-2 4.9200%(2) $ 381,494,000 Aaa/AAA
Class A-1A 4.7180%(2) $ 363,310,000 Aaa/AAA
Class B 5.0120%(2) $ 34,547,000 Aa2/AA
Class C 5.0520%(2) $ 13,518,000 Aa3/AA-
Class D 5.0235%(3) $ 30,040,000 A2/A
Class E 5.1005%(3) $ 15,020,000 A3/A-
Class F 5.3775%(3) $ 16,522,000 Baa1/BBB+
Class G 5.4755%(3) $ 13,519,000 Baa2/BBB
Class H 5.5555%(4) $ 16,522,000 Baa3/ BBB-
Class J 5.1310%(2) $ 6,008,000 Ba1/BB+
Class K 5.1310%(2) $ 12,016,000 Ba2/BB
Class L 5.1310%(2) $ 6,008,000 Ba3/BB-
Class M 5.1310%(2) $ 10,514,000 B1/B+
Class N 5.1310%(2) $ 3,004,000 B2/B
Class P 5.1310%(2) $ 3,004,000 B3/B-
Class NR 5.1310%(2) $ 19,526,937 NR/NR
Class PS-1 5.0720%(8) $ 11,100,000 A2/NR
Class PS-2 5.1400%(8) $ 5,400,000 A3/NR
Class PS-3 5.4600%(8) $ 5,300,000 Baa1/NR
Class PS-4 5.5570%(8) $ 6,500,000 Baa2/NR
Class PS-5 6.0410%(8) $ 6,500,000 Baa3/ NR
Class PS-6 7.7490%(8) $ 10,800,000 Ba1/NR
Class PS-7 8.2283%(8) $ 9,400,000 Ba2/NR
Class R None(7) None(6) */*
Class X-1 0.0905%(5) $1,201,612,937(6) Aaa/AAA
Class X-2 0.7861%(5) $1,121,230,000(6) Aaa/AAA
(1) For purposes of making distributions to the Class A-1, Class A-2 and Class
A-1A Certificates, the pool of Mortgage Loans will be deemed to consist of
two distinct Loan Groups, Loan Group 1 and Loan Group 2.
(2) Subject to a maximum Pass-Through Rate equal to the Weighted Average Net
Mortgage Rate.
(3) The Pass-Through Rate for any Distribution Date for the Class D
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.5320% per annum. The Pass-Through Rate for any
Distribution Date for the Class E Certificates will be the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.4550% per
annum. The Pass-Through Rate for any Distribution Date for the Class F
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.1780% per annum. The Pass-Through Rate for any
Distribution Date for the Class G Certificates will be the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.0800% per
annum.
(4) The Pass-Through Rate for any Distribution Date for the Class H
Certificates will be the Weighted Average Net Mortgage Rate.
(5) The Pass-Through Rates for each of the Class X-1 and Class X-2
Certificates will be calculated in accordance with the related definitions
of "Class X-1 Pass-Through Rate" and "Class X-2 Pass-Through Rate," as
applicable.
(6) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
(7) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Upper-Tier Distribution Account, after all required distributions
under this Agreement have been made to each other Class of Certificates,
will be distributed to the Holders of the Class R Certificates.
(8) The Pass-Through Rate for each of the Class PS-1, Class PS-2, Class PS-3,
Class PS-4, Class PS-5, Class PS-6 and Class PS-7 Certificates for any
Distribution Date will be equal to the Class PS-1 Pass-Through Rate, Class
PS-2 Pass-Through Rate, Class PS-3 Pass-Through Rate, Class PS-4
Pass-Through Rate, Class PS-5 Pass-Through Rate, Class PS-6 Pass-Through
Rate and Class PS-7 Pass-Through Rate, respectively, in each case, as
defined herein.
As of the close of business on the Cut-off Date, the Mortgage Loans
(not including the One Post Office Square B Note) had an aggregate principal
balance, after application of all payments of principal due on or before such
date, whether or not received, equal to $1,201,612,937. As of the close of
business on the Cut-off Date, the One Post Office Square B Note had a principal
balance, after application of all payments of principal due on or before such
date, whether or not received, equal to $55,000,000.
Six mortgage loans, the CVS-Commerce Companion Loan, the CVS Xxxxxxx
Companion Loan, the Maple Gardens Companion Loan, the 150 Technology Companion
Loan, the One Post Office Square Companion Note and the Sav On-LA Companion Loan
(collectively, the "Companion Loans") are not part of the Trust Fund but are
secured by corresponding Mortgages that secure related Mortgage Loans (each,
with the exception of the One Post Office Square Whole Loan, an "AB Mortgage
Loan" and, collectively, the "AB Mortgage Loans") that are part of the Trust
Fund. The One Post Office Square Whole Loan consists of the One Post Office
Square Mortgage Loan, the One Post Office Square Companion Note and the One Post
Office Square B Note. The One Post Office Square Mortgage Loan and the One Post
Office Square Companion Note are pari passu with each other and the One Post
Office Square B Note is subordinated to such loans. The One Post Office Square
Mortgage Loan and the One Post Office Square B Note, are part of the Trust Fund.
As and to the extent provided herein, the Companion Loans, including the One
Post Office Square Companion Note, will be serviced and administered in
accordance with this Agreement. Amounts attributable to the Companion Loans will
not be assets of the Trust Fund, and (except to the extent that such amounts are
payable or reimbursable to any party to this Agreement) will be owned by the
Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Paying Agent and the Trustee
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"150 Technology AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 131.
"150 Technology Companion Holder": The holder of the 150 Technology
Companion Loan.
"150 Technology Companion Loan": That certain loan evidenced by a
note, which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the 150 Technology AB Mortgage Loan.
"150 Technology Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of April 24, 2003 and that certain
Intercreditor Agreement Supplement, dated as of July 31, 2003, each between
LaSalle Bank National Association, as Note A Holder, and Capital Lease Funding,
LLC as Note B Holder. The 150 Technology Intercreditor Agreement relates to the
150 Technology AB Mortgage Loan.
"150 Technology Loan Pair": The 150 Technology AB Mortgage Loan,
together with the 150 Technology Companion Loan.
"150 Technology Mortgaged Property": The property subject to the
lien of the Mortgage securing the 150 Technology Loan Pair.
"AB Intercreditor Agreements": The One Post Office Square
Intercreditor Agreement, the CVS-Commerce Intercreditor Agreement, the
CVS-Xxxxxxx Intercreditor Agreement, the Maple Gardens Intercreditor Agreement,
the 150 Technology Intercreditor Agreement and the Sav On-LA Intercreditor
Agreement.
"AB Mortgage Loan": Each of the CVS-Commerce AB Mortgage Loan, the
CVS Xxxxxxx XX Mortgage Loan, the Maple Gardens AB Mortgage Loan, the 150
Technology AB Mortgage Loan and the Sav On-LA AB Mortgage Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan, a
default under the related Mortgage Loan documents arising by reason of any
failure on the part of the related Mortgagor to maintain with respect to the
related Mortgaged Property specific insurance coverage with respect to, or an
all-risk casualty insurance policy that does not specifically exclude, terrorist
or similar acts, and/or any failure on the part of the related Mortgagor to
maintain with respect to the related Mortgaged Property insurance coverage with
respect to terrorist or similar acts upon terms not materially less favorable
than those in place as of September 30, 2003, as to which default the Servicer
and the Special Servicer may forbear taking any enforcement action, provided
that the Special Servicer has determined, in its reasonable judgment, based on
inquiry consistent with the Servicing Standards and after consultation with the
Directing Certificateholder (or with respect to the One Post Office Square Whole
Loan prior to a One Post Office Square Control Appraisal Event, the One Post
Office Square Representative), that either (a) such insurance is not available
at commercially reasonable rates and that such hazards are not at the time
commonly insured against for properties similar to the related Mortgaged
Property and located in or around the region in which such related Mortgaged
Property is located, or (b) such insurance is not available at any rate;
provided, however, the Directing Certificateholder (or with respect to the One
Post Office Square Whole Loan prior to a One Post Office Square Control
Appraisal Event, the One Post Office Square Representative) will not have more
than 30 days to respond to the Special Servicer's request for consultation;
provided, further, that upon the Special Servicer's determination, consistent
with the Servicing Standards, that exigent circumstances do not allow the
Special Servicer to consult with the Directing Certificateholder (or with
respect to the One Post Office Square Whole Loan prior to a One Post Office
Square Control Appraisal Event, the One Post Office Square Representative), the
Special Servicer will not be required to do so. Each of the Servicer and the
Special Servicer shall be entitled to rely at its own expense on insurance
consultants in making determinations described above.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Residual Certificates), an
amount equal to interest for the related Interest Accrual Period at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Certificate Balance (or with respect to the Class
X-1 and Class X-2 Certificates, the Notional Amount of such Class outstanding
immediately prior to such Distribution Date (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit or One Post Office Square B Note
Collateral Support Deficit, as applicable, on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 2 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those in the
insurance policies for the Mortgaged Properties on September 11, 2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York and the State of Massachusetts; and (b) such other state or local tax laws
whose applicability shall have been brought to the attention of the Trustee and
the Paying Agent by either (i) an opinion of counsel delivered to it, or (ii)
written notice from the appropriate taxing authority as to the applicability of
such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan and the One Post Office Square Whole Loan as to which an Appraisal
Reduction Event has occurred, will be an amount calculated by the Special
Servicer, in consultation with the Directing Certificateholder, as of the first
Determination Date following the date on which the Special Servicer receives or
performs the related Appraisal, equal to the excess of (a) the Stated Principal
Balance of such Mortgage Loan or the One Post Office Square Whole Loan, as
applicable, over (b) the excess of (i) the sum of (A) 90% of the Appraised Value
of the related Mortgaged Property as determined (1) by one or more Appraisals
with respect to any Mortgage Loan or the One Post Office Square Whole Loan, as
applicable (together with any other Mortgage Loan cross-collateralized with such
Mortgage Loan), with an outstanding principal balance equal to or in excess of
$2,000,000 (the costs of which shall be paid by the Servicer as an Advance) or
(2) by an internal valuation performed by the Special Servicer with respect to
any Mortgage Loan (together with any other Mortgage Loan cross-collateralized
with such Mortgage Loan) with an outstanding principal balance less than
$2,000,000, and (B) all escrows, letters of credit and reserves in respect of
such Mortgage Loan or the One Post Office Square Whole Loan, as applicable, as
of the date of calculation over (ii) the sum of, as of the Due Date occurring in
the month of the date of determination, (A) to the extent not previously
advanced by the Servicer or the Trustee, all unpaid interest on such Mortgage
Loan or the One Post Office Square Whole Loan, as applicable, at a per annum
rate equal to its Mortgage Rate, (B) all unreimbursed Advances and any Advances
that were not reimbursed out of collections on such Mortgage Loan or the One
Post Office Square Whole Loan, as applicable and interest thereon at the
Reimbursement Rate in respect of such Mortgage Loan or the One Post Office
Square Whole Loan and (C) all currently due and unpaid real estate taxes,
assessments, insurance premiums, ground rents, unpaid Special Servicing Fees and
all other amounts due and unpaid with respect to such Mortgage Loan or the One
Post Office Square Whole Loan, as applicable (which taxes, premiums, ground
rents and other amounts have not been the subject of an Advance by the Servicer
or the Trustee, as applicable); provided, however, without limiting the Special
Servicer's obligation to order and obtain such Appraisal, if the Special
Servicer has not obtained the Appraisal or valuation, as applicable, referred to
above within 60 days of the Appraisal Reduction Event (or with respect to the
reduction event set forth in clauses (i) and (vi) of the definition of Appraisal
Reduction Event, within 120 days after the initial delinquency for the related
Appraisal Reduction Event), the amount of the Appraisal Reduction shall be
deemed to be an amount equal to 25% of the current Stated Principal Balance of
the related Mortgage Loan or the One Post Office Square Whole Loan, as
applicable, until such time as such appraisal or valuation referred to above is
received and the Appraisal Reduction is calculated. Within 60 days after the
Appraisal Reduction Event, the Special Servicer shall order and receive an
Appraisal (the cost of which shall be paid as a Servicing Advance); provided,
however, that with respect to an Appraisal Reduction Event as set forth in
clause (i) of the definition of Appraisal Reduction Event, the Special Servicer
shall order and receive such Appraisal within the 120-day period set forth in
such clause (i), which Appraisal shall be delivered by the Special Servicer to
the Servicer, the Directing Certificateholder, the Paying Agent and the Trustee.
With respect to each Mortgage Loan and the One Post Office Square
Whole Loan as to which an Appraisal Reduction has occurred (unless such Mortgage
Loan or the One Post Office Square Whole Loan, as applicable, has become a
Corrected Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the One Post Office Square Whole Loan)),
the Special Servicer shall, within 30 days of each anniversary of the related
Appraisal Reduction Event, order an Appraisal (which may be an update of a prior
Appraisal), the cost of which shall be paid by the Servicer as a Servicing
Advance or to conduct an internal valuation, as applicable. Based upon such
Appraisal, the Special Servicer shall redetermine (in consultation with the
Directing Certificateholder) and report to the Directing Certificateholder (and,
in the case of the One Post Office Square Whole Loan, the One Post Office Square
Controlling Holder), the Servicer, the Paying Agent and the Trustee the amount
of the Appraisal Reduction with respect to such Mortgage Loan or the One Post
Office Square Whole Loan, as applicable, and such redetermined Appraisal
Reduction shall replace the prior Appraisal Reduction with respect to such
Mortgage Loan or the One Post Office Square Whole Loan, as applicable. The
Directing Certificateholder shall have ten (10) Business Days to review and
approve each calculation of an Appraisal Reduction; provided, however, that if
the Directing Certificateholder fails to approve any calculation of the
Appraisal Reduction within 30 days of receipt of the initial Appraisal
Reduction, such consent shall be deemed given. Notwithstanding the foregoing,
the Special Servicer will not be required to obtain an Appraisal or conduct an
internal valuation, as applicable, with respect to a Mortgage Loan or the One
Post Office Square Whole Loan which is the subject of an Appraisal Reduction
Event to the extent the Special Servicer has obtained an Appraisal or valuation,
as applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan or the One Post Office Square Whole Loan, as applicable;
provided that the Special Servicer is not aware of any material change to the
related Mortgaged Property having occurred and affecting the validity of such
appraisal or valuation, as applicable.
Any Appraisal Reduction for the One Post Office Square Whole Loan
shall be allocated as follows: first, to the One Post Office Square B Note and
then, to the One Post Office Square Mortgage Loan and the One Post Office Square
Companion Note, pro rata and pari passu according to their respective Stated
Principal Balances.
Any Mortgage Loan or the One Post Office Square Whole Loan
previously subject to an Appraisal Reduction which loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan or the One Post Office Square Whole Loan, as
applicable), and with respect to which no other Appraisal Reduction Event has
occurred and is continuing, will no longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan, the One Post Office Square Whole
Loan or the related REO Property will be reduced to zero as of the date on which
such Mortgage Loan is paid in full, liquidated, repurchased or otherwise removed
from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan and
the One Post Office Square Whole Loan, the earliest of (i) 120 days after an
uncured delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan or the One Post Office Square Whole
Loan, as applicable, (ii) the date on which a reduction in the amount of Monthly
Payments on such Mortgage Loan or the One Post Office Square Whole Loan, as
applicable, or a change in any other material economic term of such Mortgage
Loan or the One Post Office Square Whole Loan, as applicable (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan or the One Post Office Square Whole Loan, as applicable,
by the Special Servicer, (iii) the date on which a receiver has been appointed,
(iv) 60 days after a Mortgagor declares bankruptcy, (v) 60 days after the date
on which an involuntary petition of bankruptcy is filed with respect to a
Mortgagor, (vi) 90 days after an uncured delinquency occurs in respect of a
Balloon Payment with respect to such Mortgage Loan or the One Post Office Square
Whole Loan, as applicable, unless the Mortgagor has delivered to the Servicer on
the related Maturity Date a written refinancing commitment reasonably
satisfactory in form and substance to the Special Servicer which provides that
such refinancing will occur within 60 days thereafter and (vii) immediately
after such Mortgage Loan or the One Post Office Square Whole Loan, as
applicable, becomes an REO Loan; provided, however, that an Appraisal Reduction
Event shall not occur at any time when the aggregate Certificate Balances of all
Classes of Certificates (other than the Class A Certificates) have been reduced
to zero. The Special Servicer shall notify the Servicer, or the Servicer shall
notify the Special Servicer, as applicable, promptly upon the occurrence of any
of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing the related Mortgage Loan or the One Post Office Square Whole Loan, as
applicable.
"ARCap Naming Convention": As defined in Section 3.12(a)
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any reduction thereof occurring in connection
with a modification of such Mortgage Loan in connection with a default or
bankruptcy or similar proceedings, and (b) interest on the Stated Principal
Balance of such Mortgage Loan at the applicable Mortgage Rate (net of interest
at the Servicing Fee Rate).
"Authenticating Agent": The Paying Agent or any agent of the Trustee
appointed to act as Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date and the Majority Mortgage Loans, an amount equal to the sum of (without
duplication):
(a) the aggregate amount relating to the Majority Mortgage Loans on
deposit (exclusive of any Net Investment Earnings) in the Lower-Tier
Distribution Account as of the close of business on the related P&I
Advance Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds or Insurance and Condemnation Proceeds, in each case,
received subsequent to the related Determination Date (or, with
respect to voluntary Principal Prepayments for each Mortgage Loan
with a Due Date occurring after the related Determination Date, the
related Due Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvii),
inclusive, and clauses (xix) and (xx) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Lower-Tier Distribution Account pursuant to clauses (iv) through
(ix), inclusive, of Section 3.05(c);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in error; and
(viii) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee with respect to the Mortgage
Loans for which such P&I Advances are made);
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.26(b); and
(e) with respect to the first Distribution Date, the Closing Date
Deposit Amount deposited into the Distribution Account pursuant to Section
2.01(g).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class A, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificate is a fraction (a) whose
numerator is the greater of (x) zero and (y) the amount by which (i) the
Pass-Through Rate on such Class of Certificates exceeds (ii) the discount rate
used in accordance with the related Mortgage Loan documents in calculating the
Yield Maintenance Charge with respect to such Principal Prepayment and (b) whose
denominator is the amount by which (i) the Mortgage Rate on such Mortgage Loan
exceeds (ii) the discount rate used in accordance with the related Mortgage Loan
documents in calculating the Yield Maintenance Charge with respect to such
Principal Prepayment. However, under no circumstances shall the Base Interest
Fraction be greater than one. If such discount rate is greater than the Mortgage
Rate on such Mortgage Loan, then the Base Interest Fraction will equal zero. The
Servicer shall provide to the Paying Agent the discount rate references above
for purposes of calculating the Base Interest Fraction.
"Bid Allocation": With respect to the Servicer and each Sub-Servicer
and the proceeds of any bid pursuant to Section 7.01(c), the amount of such
proceeds (net of any expenses incurred in connection with such bid and the
transfer of servicing), multiplied by a fraction equal to (a) the Servicing Fee
Amount for the Servicer or such Sub-Servicer, as the case may be, as of such
date of determination, over (b) the aggregate of the Servicing Fee Amounts for
the Servicer and all Sub-Servicers as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois, Charlotte,
North Carolina, Boston, Massachusetts, or the city and state in which the
Corporate Trust Office of the Trustee or principal place of business of the
Servicer, the Paying Agent or the Special Servicer is located, are authorized or
obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank, National Association, as Servicer, on behalf of U.S. Bank National
Association, as Trustee, in trust for the registered holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1, Certificate Account." Any such account or
accounts shall be an Eligible Account. The subaccount described in the next to
last paragraph of Section 3.04(a) that is part of the Certificate Account shall
be for the benefit of the related Companion Holder, to the extent funds on
deposit in such subaccount are attributed to such Companion Loan and shall not
be an asset of the Trust Fund or the Upper-Tier REMIC or Lower-Tier REMIC formed
hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date immediately
prior to such date of determination (determined as adjusted pursuant to Section
1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to
eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Paying Agent, the Depositor, or any Affiliate thereof
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver has been obtained, if such consent, approval or waiver sought from such
party would in any way increase its compensation or limit its obligations as
Servicer, Special Servicer or Depositor, as applicable, hereunder; provided,
however, so long as there is no Event of Default with respect to the Servicer or
the Special Servicer, the Servicer and the Special Servicer shall be entitled to
exercise such Voting Rights with respect to any issue which could reasonably be
believed to adversely affect such party's compensation or increase its
obligations or liabilities hereunder; and provided, further, however, that such
restrictions shall not apply to the exercise of the Special Servicer's rights
(or the Servicer's rights, if any) or any of their Affiliates as a member of the
Controlling Class. The Trustee and the Paying Agent shall each be entitled to
request and rely upon a certificate of the Servicer, the Special Servicer or the
Depositor in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates, Uncertificated Lower-Tier
Interests or Loan REMIC Regular Interest, all of the Certificates bearing the
same alphabetical (and, if applicable, numerical) Class designation and each
designated Uncertificated Lower-Tier Interest or Loan REMIC Regular Interest.
"Class A Certificate": Any Class A-1, Class A-1A or Class A-2
Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.1340%.
"Class A-1A Certificate": A Certificate designated as "Class A-1A"
on the face thereof, in the form of Exhibit A-3 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1A Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (i) 4.7180% and (ii) the Weighted
Average Net Mortgage Rate.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a rate per annum equal to the lesser of (i) 4.9200% and (ii) the Weighted
Average Net Mortgage Rate.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-8 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.0120% and (ii) the Weighted
Average Net Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-9 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the lesser of (i) 5.0520% and (ii) the Weighted
Average Net Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.532%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.455%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.178%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.080%.
"Class H Certificate": A Certificate designated as "Class H"
on the face thereof, in the form of Exhibit A-14 hereto, and evidencing a
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class KPS-1 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-2 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-3 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-4 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-5 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-6 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class KPS-7 Uncertificated Interest": A regular interest in the
Loan REMIC which is held as an asset of the Lower-Tier REMIC and having the
Original Loan REMIC Principal Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-1A-8 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LD Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LE Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LG-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LH-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LL-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-4 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-5 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-6 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LPS-7 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and per annum rate of
interest set forth in the Preliminary Statement hereto.
"Class LR Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-29 hereto, evidencing the Loan REMIC
Residual Interest and the Class LR Residual Interest.
"Class LR Residual Interest": The sole class of "residual interests"
in the Lower-Tier REMIC for purposes of the REMIC Provisions and evidenced by
the Class LR Certificates.
"Class M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-21 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions and the
undivided beneficial interest in the Grantor Trust.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class P Certificate": A Certificate designated as "Class P" on the
face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Pass-Through Rate": With respect to any Distribution Date,
a rate per annum equal to the lesser of (i) 5.1310% and (ii) the Weighted
Average Net Mortgage Rate.
"Class PS Certificates": Any of the Class PS-1, Class PS-2, Class
PS-3, Class PS-4, Class PS-5, Class PS-6 and Class PS-7 Certificates.
"Class PS-1 Certificate": A Certificate designated as "Class PS-1"
on the face thereof, in the form of Exhibit A-22 hereto.
"Class PS-1 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-1 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-1 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-1 Component immediately prior to such Distribution Date; provided, that
the Class PS-1 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-2 Certificate": A Certificate designated as "Class PS-2"
on the face thereof, in the form of Exhibit A-23 hereto.
"Class PS-2 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-2 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-2 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-2 Component immediately prior to such Distribution Date; provided, that
the Class PS-2 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-3 Certificate": A Certificate designated as "Class PS-3"
on the face thereof, in the form of Exhibit A-24 hereto.
"Class PS-3 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-3 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-3 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-3 Component immediately prior to such Distribution Date; provided, that
the Class PS-3 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-4 Certificate": A Certificate designated as "Class PS-4"
on the face thereof, in the form of Exhibit A-25 hereto.
"Class PS-4 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-4 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-4 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-4 Component immediately prior to such Distribution Date; provided, that
the Class PS-4 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-5 Certificate": A Certificate designated as "Class PS-5"
on the face thereof, in the form of Exhibit A-26 hereto.
"Class PS-5 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-5 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-5 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-5 Component immediately prior to such Distribution Date; provided, that
the Class PS-5 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-6 Certificate": A Certificate designated as "Class PS-6"
on the face thereof, in the form of Exhibit A-27 hereto.
"Class PS-6 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-6 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-6 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding PS Component Balance for
the PS-6 Component immediately prior to such Distribution Date; provided, that
the Class PS-6 Pass-Through Rate for the Distribution Date (A) that occurs in
January and February in any year which is not a leap year or that occurs in
February in any year which is a leap year, and (B) that occurs in March, will
take into account any Withheld Amounts for the One Post Office Square B Note,
determined in accordance with Section 3.26(a).
"Class PS-7 Certificate": A Certificate designated as "Class PS-7"
on the face thereof, in the form of Exhibit A-28 hereto.
"Class PS-7 Pass-Through Rate": With respect to any Distribution
Date, the annualized rate at which interest would have to accrue in respect of
the PS-7 Component on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Default Interest) in respect of such PS-7 Component during the one
month period immediately preceding the related Due Date at the related One Post
Office Square B Note Remittance Rate on the outstanding One Post Office Square B
Note Balance for the PS-7 Component immediately prior to such Distribution Date;
provided, that the Class PS-7 Pass-Through Rate for the Distribution Date (A)
that occurs in January and February in any year which is not a leap year or that
occurs in February in any year which is a leap year, and (B) that occurs in
March, will take into account any Withheld Amounts for the One Post Office
Square B Note, determined in accordance with Section 3.26(a).
"Class PS Controlling Class": As of any date of determination, the
most subordinate Class of Class PS Certificates then outstanding that has a then
aggregate Certificate Balance at least equal to 25% of the initial Certificate
Balance of such Class of Certificates. As of the Closing Date, the Class PS
Controlling Class is the Class PS-7 Certificates.
"Class PS Controlling Class Certificateholders": Each Holder (or
Certificate Owner, if applicable) of a Certificate of the applicable Class PS
Controlling Class as certified by the Certificate Registrar to the Trustee from
time to time.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-27 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X Reference Rate": With respect to any Distribution Date, the
rate for such Distribution Date specified in Exhibit L hereto.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y)(1) with
respect to Component XD, Component XE, Component XF-1, Component XF-2, Component
XG-1, Component XG-2, Component XH-1 and Component XH-2, the sum of (I) the
Class X-2 Strip Rate for the applicable Class X-2 Component and (II) the
Pass-Through Rate for the Related Certificates for such Distribution Date and
(2) for each other Class X-2 Component, the greater of (I) the Class X Reference
Rate for such Distribution Date and (II) the Pass-Through Rate for the Related
Certificate for such Distribution Date, and (ii) for any Distribution Date
occurring after the Class X-2 Termination Date, a rate per annum equal to (x)
the Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Related Certificates for such Distribution Date;
provided, that in no event shall any Class X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-1-5, Component XX-0-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-2-1, Component XA-2-2,
Component XA-2-3, Component XB, Component XC, Component XD, Component XE,
Component XF-1, Component XF-2, Component XG-1, Component XG-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK, Component XL-1 and Component XL-2.
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in September 2004, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-5, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-2-1, Component XA-2-2, Component
XA-2-3, Component XB, Component XC, Component XD, Component XE, Component XF-1,
Component XF-2, Component XG-1, Component XG-2, Component XX-0, Xxxxxxxxx XX-0,
Xxxxxxxxx XX, Component XK, Component XL-1 and Component XL-2.
(ii) With respect to any Distribution Date after the
Distribution Date in September 2004 through and including the
Distribution Date in September 2005, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx
XX-0X-0, Component XA-2-1, Component XA-2-2, Component XA-2-3,
Component XB, Component XC, Component XD, Component XE, Component
XF-1, Component XF-2, Component XG-1, Component XG-2, Component
XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK, Component XL-1 and
Component XL-2.
(iii) With respect to any Distribution Date after the
Distribution Date in September 2005 through and including the
Distribution Date in September 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0-0, Component
XA-2-2, Component XA-2-3, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1,
Component XG-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX,
Component XK and Component XL-2.
(iv) With respect to any Distribution Date after the
Distribution Date in September 2006 through and including the
Distribution Date in September 2007, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-2-1, Component XA-2-2, Component XA-2-3, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2, Component XG-1, Component XG-2, Component XH-1, Component XH-2
and Component XJ.
(v) With respect to any Distribution Date after the
Distribution Date in September 2007 through and including the
Distribution Date in September 2008, the sum of the then Component
Notional Amounts of the then Component Notional Amounts of Component
XX-0-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-2-1, Component XA-2-2, Component XA-2-3, Component XB,
Component XC, Component XD, Component XE, Component XF-1, Component
XF-2, Component XG-1, Component XG-2 and Component XH-2.
(vi) With respect to any Distribution Date after the
Distribution Date in September 2008 through and including the
Distribution Date in September 2009, the sum of the then Component
Notional Amounts of Component XX-0X-0, Xxxxxxxxx XX-0X-0, Component
XA-2-2, Component XA-2-3, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2 and Component XG-2.
(vii) With respect to any Distribution Date after the
Distribution Date in September 2009 through and including the
Distribution Date in September 2010, the sum of the then Component
Notional Amounts of Component XA-1A-8, Component XA-2-3, Component
XB, Component XC, Component XD, Component XE and Component XF-2.
(viii) after the Distribution Date in September 2010, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Component for
any Distribution Date, a rate per annum equal to (i) for any Distribution Date
occurring on or before the Class X-2 Termination Date, (u) with respect to
Component XD, the lesser of (A) 0.5020% and (B) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class D Certificates, (v) with respect to
Component XE, the lesser of (A) 0.4250% and (B) the Weighted Average Net
Mortgage Rate for such Distribution Date minus the Pass-Through Rate in effect
on such Distribution Date for the Class E Certificates, (w) with respect to
Components XF-1 and XF-2, the lesser of (A) 0.1480% and (B) the Weighted Average
Net Mortgage Rate for such Distribution Date minus the Pass-Through Rate in
effect on such Distribution Date for the Class F Certificates, (x) with respect
to Components XG-1 and XG-2, the lesser of (A) 0.0500% and (B) the Weighted
Average Net Mortgage Rate for such Distribution Date minus the Pass-Through Rate
in effect on such Distribution Date for the Class G Certificates, (y) with
respect to Components XH-1 and XH-2, the lesser of (A) 0.0000% and (B) the
Weighted Average Net Mortgage Rate for such Distribution Date minus the
Pass-Through Rate in effect on such Distribution Date for the Class H
Certificates, and (z) with respect to each other Class X-2 Component, (A) the
lesser of (I) the Weighted Average Net Mortgage Rate for such Distribution Date
and (II) the Class X Reference Rate for such Distribution Date, minus (B) the
Pass-Through Rate for the Related Certificates (provided that in no event shall
any Class X-2 Strip Rate be less than zero) and (ii) for any Distribution Date
occurring after the Class X-2 Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in September
2010.
"Clearstream": Clearstream Banking, societe anonyme or any successor
thereto.
"Closing Date": September 30, 2003.
"Closing Date Deposit Amount": $763,084.37, representing the
aggregate amount of interest that would have accrued at the related Net Mortgage
Rates during the Due Period ending in October 2003, for those Mortgage Loans
that do not have their first Monthly Payment due until November 2003.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee, the Paying Agent
and the Servicer.
"CMSA Bond Level File": The monthly report in the "CMSA Bond Level
File" format substantially in the form of and containing the information called
for therein, a current form of which is attached hereto as Exhibit M-1, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Bond Level File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Trustee and the
Paying Agent.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a current form of which is attached hereto as
Exhibit M-2, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Collateral
Summary File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Trustee and the Paying Agent.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-7, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Comparative Financial Status Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable, setting forth, among other things, (A) the
most recent property inspection date for each Mortgaged Property to be covered
thereby and (B) in each instance based on (1) the rent roll for the
corresponding reporting period and (2) to the extent in the possession or under
the control of the Servicer (i) for year end financial reports (in descending
order of desirability), (a) trailing 12-months normalized financial information,
or (b) if the information in clause (a) is not available, normalized financial
information based on no less than nine months of operating statements
(annualized), or (c) if the information in clauses (a) and (b) is not available,
the most recent current year-to-date financial information (annualized) and (ii)
with respect to quarterly reports, the current year-to-date financial
information: (x) the occupancy and debt service coverage ratio for each Mortgage
Loan or Mortgaged Property, as applicable, to be covered thereby; and (y) the
revenue, expense, net operating income and net cash flow for each Mortgaged
Property to be covered thereby. For the purposes of the production by the
Servicer or the Special Servicer of any such report that is required to state
information with respect to any Mortgage Loan for any period prior to the
Cut-Off Date, the Servicer or the Special Servicer, as the case may be, may
conclusively rely (without independent verification), absent manifest error, on
information provided to it by the related Mortgage Loan Seller, by the related
Mortgagor or (x) in the case of such a report produced by the Servicer, by the
Special Servicer (if other than the Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Servicer (if
other than the Special Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-8, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for the
form of the "Delinquent Loan Status Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a current form of which is attached hereto
as Exhibit M-3, or such other form for the presentation of such information as
may be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Financial
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-9, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Liquidation Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Servicer or the Special
Servicer, as applicable.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": The monthly report in the "Historical Loan Modification Report" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, a current form of which is attached hereto as Exhibit
M-10, or such other form for the presentation of such information as may be
approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Servicer or the
Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains seven electronic files
((1) CMSA Loan Set-up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File, (6)
CMSA Financial File and (7) CMSA Special Servicer Loan File) and ten
surveillance reports ((1) CMSA Servicer Watchlist, (2) CMSA Delinquent Loan
Status Report, (3) CMSA REO Status Report, (4) CMSA Comparative Financial Status
Report, (5) CMSA Historical Loan Modification and Corrected Mortgage Loan
Report, (6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement
Analysis Report, (8) CMSA NOI Adjustment Worksheet, (9) CMSA Loan Level
Reserve/LOC Report and (10) CMSA Reconciliation of Funds). In addition, the CMSA
Investor Reporting Package shall include the Monthly Additional Report on
Recoveries and Reimbursements (notwithstanding that such form of report has not
been adopted or recommended by the CMSA). The CMSA IRP shall be substantially in
the form of, and containing the information called for in, the downloadable
forms of the "CMSA IRP" available as of the Closing Date on the CMSA website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage-backed securities transaction generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA IRP" available as of the Closing Date on the CMSA website, as
is reasonably acceptable to the Servicer, the Special Servicer, the Paying Agent
and the Trustee. For the purposes of the production of the Comparative Financial
Status Report by the Servicer or the Special Servicer of any such report that is
required to state information for any period prior to the Cut-off Date, the
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Servicer, by the Special Servicer
(if other than the Servicer or an Affiliate thereof) and (y) in the case of such
a report produced by the Special Servicer, by the Servicer (if other than the
Special Servicer or an Affiliate thereof).
"CMSA Loan Level Reserve/LOC Report": The monthly report in the
"Loan Level Reserve/LOC Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-16, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Loan Level Reserve/LOC Report" available as of the Closing Date
on the CMSA website, is reasonably acceptable to the Servicer.
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-4, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA website, as is reasonably acceptable to the Servicer, the Paying Agent
and the Trustee, and further provided that each CMSA Loan Periodic Update File
prepared by the Servicer shall be accompanied by a Monthly Additional Report on
Recoveries and Reimbursements and all references herein to "CMSA Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-5, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Loan Setup
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer and the Paying Agent.
"CMSA NOI Adjustment Worksheet": The monthly report in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a current form of which
is attached hereto as Exhibit M-11, or such other form for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Servicer or the Special Servicer, as
applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, a
current form of which is attached hereto as Exhibit M-12, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Operating Statement Analysis Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-6, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Property
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Reconciliation of Funds": The monthly report in the
"Reconciliation of Funds" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a current form of which
is attached hereto as Exhibit M-17, or such other form for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"Reconciliation of Funds" available as of the Closing Date on the CMSA website,
is reasonably acceptable to the Servicer.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-13, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA REO Status
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Servicer Watchlist and Portfolio Review Guidelines": As of
each Determination Date a report, including and identifying each Non-Specially
Serviced Mortgage Loan satisfying the "CMSA Portfolio Review Guidelines"
approved from time to time by the CMSA in the "CSMA Servicer Watchlist" format
substantially in the form of and containing the information called for therein
for the Mortgage Loans, a current form of which is attached hereto as Exhibit
M-14, or such other form (including other portfolio review guidelines) for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Servicer Watchlist" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Servicer.
"CMSA Special Servicer Loan File": The monthly report in the "CMSA
Special Servicer Loan File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-15, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Special Servicer Loan File" available as of the Closing
Date on the CMSA website, is reasonably acceptable to the Servicer.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled "Xxxxx Fargo Bank, National Association, as Companion Paying
Agent for the Companion Holders of the Companion Loans relating to the X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1." The Companion Distribution Account
shall not be an asset of the Trust Fund, but instead shall be held by the
Companion Paying Agent on behalf of the applicable Companion Holder. Any such
account shall be an Eligible Account. Notwithstanding the foregoing, if the
Servicer and the Companion Paying Agent are the same entity, the Companion
Distribution Account may be the subaccount referenced in the second to the last
paragraph of Section 3.04(a).
"Companion Holder": With respect to any Companion Loan, the holder
of the mortgage note representing such Companion Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Servicer in its role as Companion
Paying Agent appointed pursuant to Section 3.31.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.32.
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls, and (ii) the aggregate
of (A) that portion of Servicing Fees for such Distribution Date that is, in the
case of each and every Mortgage Loan and REO Loan for which such Servicing Fees
are being paid for such Distribution Date, calculated at 0.02% per annum, and
(B) all Prepayment Interest Excesses and, to the extent earned on Principal
Prepayments, Net Investment Earnings for such Distribution Date. However, if a
Prepayment Interest Shortfall occurs as a result of the Servicer's allowing the
related Mortgagor to deviate from the terms of the related Mortgage Loan
documents regarding Principal Prepayments (other than (X) subsequent to a
default under the related Mortgage Loan documents, (Y) pursuant to applicable
law or a court order, or (Z) at the request or with the consent of the Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (A) all Servicing Fees for such Distribution Date and (B)
all Prepayment Interest Excesses and (C) to the extent earned on Principal
Prepayments, Net Investment Earnings received by the Servicer for such
Distribution Date In no event will the rights of the Certificateholders to
offset the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-4, Component XA-1-5, Component XX-0-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0-0,
Component XA-2-2, Component XA-2-3, Component XB, Component XC, Component XD,
Component XE, Component XF-1, Component XF-2, Component XG-1, Component XG-2,
Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX, Component XK, Component XL-1,
Component XL-2, Component XM, Component XN, Component XP and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-2 Uncertificated Interest as of any date of determination.
"Component XA-1-3": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-3 Uncertificated Interest as of any date of determination.
"Component XA-1-4": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-4 Uncertificated Interest as of any date of determination.
"Component XA-1-5": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-5 Uncertificated Interest as of any date of determination.
"Component XA-1-6": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-1": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-A1-1 Uncertificated Interest as of
any date of determination.
"Component XA-1A-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-2 Uncertificated Interest as of any date of determination.
"Component XA-1A-3": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-3 Uncertificated Interest as of any date of determination.
"Component XA-1A-4": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-4 Uncertificated Interest as of any date of determination.
"Component XA-1A-5": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-5 Uncertificated Interest as of any date of determination.
"Component XA-1A-6": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-6 Uncertificated Interest as of any date of determination.
"Component XA-1A-7": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-7 Uncertificated Interest as of any date of determination.
"Component XA-1A-8": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-1A-8 Uncertificated Interest as of any date of determination.
"Component XA-2-1": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LA-2-1 Uncertificated Interest as of any date of determination.
"Component XA-2-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XA-2-3": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-3 Uncertificated Interest as of any date of determination.
"Component XB": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LB Uncertificated Interest as of any date of determination.
"Component XC": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LC Uncertificated Interest as of any date of determination.
"Component XD": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LD Uncertificated Interest as of any date of determination.
"Component XE": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE Uncertificated Interest as of any date of determination.
"Component XF-1": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XF-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-2 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XJ": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ Uncertificated Interest as of any date of determination.
"Component XK": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LK Uncertificated Interest as of any date of determination.
"Component XL-1": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-1 Uncertificated Interest as of any date of determination.
"Component XL-2": One of the 35 components of the Class X-1
Certificates and one of the 29 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LL-2 Uncertificated Interest as of any date of determination.
"Component XM": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LM Uncertificated Interest as of any
date of determination.
"Component XN": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LN Uncertificated Interest as of any
date of determination.
"Component XNR": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Component XP": One of the 35 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LP Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the initial Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates. In
determining the most subordinate Class of Regular Certificates for the purpose
of determining the Controlling Class, such determination shall be made without
consideration of Appraisal Reductions, if any, allocated to any Class of Regular
Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18(a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx,
Xxxxxx, XX 00000, Attention: Corporate Trust Services, X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Series 2003-LN1 (telecopy number (617)
603-6638).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan or Companion Loan, whether by a consensual modification or in
connection with a bankruptcy, insolvency or similar proceeding involving the
Mortgagor), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer and no other event or circumstance
exists that causes such Mortgage Loan to otherwise constitute a Specially
Serviced Mortgage Loan) the servicing of which the Special Servicer has returned
to the Servicer pursuant to Section 3.21(a).
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan and all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The weighted average Debt
Service Coverage Ratio for all remaining related Crossed Loans for the four
calendar quarters immediately preceding the repurchase or substitution shall not
be less than the greater of (a) the Debt Service Coverage Ratio for all such
related Crossed Loans, including the affected Crossed Loan, for the four
calendar quarters immediately preceding the repurchase or substitution, and (b)
1.25x, (ii) the weighted average LTV Ratio for all remaining related Crossed
Loans determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller shall not be greater than the lesser of (a) the weighted
average LTV Ratio for all such related Crossed Loans, including the affected
Crossed Loan, determined at the time of repurchase or substitution based upon an
Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller and (b) 75%, (iii) the Mortgage Loan Seller, at its
expense, shall have furnished the Trustee with an Opinion of Counsel that any
modification relating to the repurchase of a Crossed Loan shall not cause an
Adverse REMIC Event, (iv) the related Mortgage Loan Seller causes the related
Crossed Loans to become not cross-collateralized and cross-defaulted with each
other prior to such repurchase and (v) the Directing Certificateholder shall
have consented to the repurchase of the affected Crossed Loan, which consent
shall not be unreasonably withheld.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan or Companion
Loan, the related Due Date of such Mortgage Loan or Companion Loan in September
2003 or, with respect to those Mortgage Loans that were originated in August
2003 and have their first Due Date in October 2003, September 1, 2003 or, with
respect to those Mortgage Loans that were originated in September 2003, the date
of origination of such Mortgage Loan.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan
or Companion Loan, the outstanding principal balance of such Mortgage Loan or
Companion Loan as of the Cut-off Date, after application of all payments of
principal due on or before such date, whether or not received.
"CVS-Commerce AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 150.
"CVS-Commerce Companion Holder": The holder of the CVS-Commerce
Companion Loan.
"CVS-Commerce Companion Loan": That certain loan evidenced by a
note, which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the CVS-Commerce AB Mortgage Loan.
"CVS-Commerce Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of April 24, 2003 and that certain
Intercreditor Agreement Supplement, dated as of April 24, 2003, each between
LaSalle Bank National Association, as Note A Holder, and Capital Lease Funding,
LLC as Note B Holder. The CVS-Commerce Intercreditor Agreement relates to the
CVS-Commerce AB Mortgage Loan.
"CVS-Commerce Loan Pair": The CVS-Commerce AB Mortgage Loan,
together with the CVS-Commerce Companion Loan.
"CVS-Commerce Mortgaged Property": The property subject to the lien
of the Mortgage securing the CVS-Commerce Loan Pair.
"CVS-Xxxxxxx XX Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 105.
"CVS-Xxxxxxx Companion Holder": The holder of the CVS-Xxxxxxx
Companion Loan.
"CVS-Xxxxxxx Companion Loan": That certain loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the CVS-Xxxxxxx XX Mortgage Loan.
"CVS-Xxxxxxx Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of April 24, 2003 and that certain
Intercreditor Agreement Supplement, dated as of July 25, 2003, each between
LaSalle Bank National Association, as Note A Holder, and Capital Lease Funding,
LLC as Note B Holder. The CVS-Xxxxxxx Intercreditor Agreement relates to the
CVS-Xxxxxxx XX Mortgage Loan.
"CVS-Xxxxxxx Loan Pair": The CVS-Xxxxxxx XX Mortgage Loan, together
with the CVS-Xxxxxxx Companion Loan.
"CVS-Xxxxxxx Mortgaged Property": The property subject to the lien
of the Mortgage securing the CVS-Xxxxxxx Loan Pair.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 4, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the remaining amortization
term indicated in the Mortgage Loan Schedule).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note or (ii) as to which the Servicer or Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of the initial Depository for purposes
of registering those Certificates that are to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of New
York and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18(a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt
of a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class will be the Directing
Certificateholder which will initially be ARCap CMBS Fund REIT, Inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), 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 or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States 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 a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Paying Agent based upon an
Opinion of Counsel as provided to the Paying Agent (at no expense to the Paying
Agent) that the holding of an Ownership Interest in a Residual Certificate by
such Person may cause the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC 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": (A) With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a) and (B) with respect to any Class of
the Class PS Certificates, the Accrued Certificate Interest in respect of such
Class of Certificates for such Distribution Date, reduced (to not less than
zero) by (i) any allocations, if any, of the Net Aggregate Prepayment Interest
Shortfall with respect to the One Post Office Square B Note for such
Distribution Date allocated to such Class of Certificates as set forth below,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a). The Net Aggregate Prepayment Interest
Shortfall for the One Post Office Square B Note, if any, for each Distribution
Date shall be allocated, up to an amount equal to the lesser of (i) any such Net
Aggregate Prepayment Interest Shortfall and (ii) any Accrued Certificate
Interest in respect of the particular Class of related Certificates for such
Distribution Date, first, to the Class PS-7 Certificates, then to the Class PS-6
Certificates, then to the Class PS-5 Certificates, then to the Class PS-4
Certificates, then to the Class PS-3 Certificates, then to the Class PS-2
Certificates and then to the Class PS-1 Certificates.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Excess Interest Distribution
Account and Loan REMIC Distribution Account, all of which may be subaccounts of
a single Eligible Account.
"Distribution Date": The 15th day of each month, or, if such 15th
day is not a Business Day, on the next succeeding Business Day, beginning in
October 2003.
"Due Date": With respect to (i) any Mortgage Loan or Companion Loan
on or prior to its Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment thereon is scheduled to be first
due, (ii) any Mortgage Loan or Companion Loan after the Maturity Date therefor,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan or Companion Loan had been scheduled to be
first due, and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on the related Mortgage Loan had
been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan or Companion Loan the period commencing on the day immediately succeeding
the Due Date for such Mortgage Loan occurring in the month preceding the month
in which such Distribution Date occurs and ending on and including the Due Date
for such Mortgage Loan or Companion Loan occurring in the month in which such
Distribution Date occurs. Notwithstanding the foregoing, in the event that the
last day of a Due Period (or applicable grace period) is not a Business Day, any
Monthly Payments received with respect to the Mortgage Loans or Companion Loan
relating to such Due Period on the Business Day immediately following such day
shall be deemed to have been received during such Due Period and not during any
other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), the long-term unsecured debt obligations of
which are rated at least (A) "Aa3" by Moody's or "A2" provided that the short
term obligations of which are rated "P-1" by Moody's and (B) "A+" by S&P, if the
deposits are to be held in such account 30 days or more and the short-term debt
obligations of which have a short-term rating of not less than "A-1" from S&P,
if the deposits are to be held in such account for less than 30 days, or such
other account or accounts with respect to which each of the Rating Agencies
shall have confirmed in writing that the then current rating assigned to any of
the Certificates that are currently being rated by such Rating Agency will not
be qualified, downgraded or withdrawn by reason thereof, or (ii) a segregated
trust account or accounts maintained with the corporate trust department of a
federal or state chartered depository institution or trust company that, in
either case, has a combined capital and surplus of at least $50,000,000 and has
corporate trust powers, acting in its fiduciary capacity, provided that any
state chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss. 9.10(b).
Eligible Accounts may bear interest. No Eligible Account shall be evidenced by a
certificate of deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class J, Class K, Class L, Class
M, Class N, Class P, Class NR, Class PS-6 or Class PS-7 Certificate; provided
that any such Certificate: (a) will cease to be considered an ERISA Restricted
Certificate and (b) will cease to be subject to the transfer restrictions
contained in Section 5.02(c) if, as of the date of a proposed transfer of such
Certificate, either (i) it is rated in one of the four highest generic ratings
categories by a Rating Agency or (ii) relevant provisions of ERISA would permit
the transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Euroclear": Euroclear Bank societe anonyme or any successor
thereto.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of the Loan REMIC, Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Paying Agent pursuant to Section
3.04(c), which shall be entitled "LaSalle Bank National Association, as Paying
Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-LN1, Excess Interest Distribution Account," and which must be an Eligible
Account (or a subaccount of an Eligible Account). The Excess Interest
Distribution Account shall not be an asset of the Loan REMIC, Lower-Tier REMIC
or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Mae": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor
thereto.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan or Corrected Mortgage Loan (and, if
applicable, any defaulted Companion Loan) or REO Property (other than a Mortgage
Loan or REO Property, as the case may be, that was purchased by any of the
Mortgage Loan Sellers pursuant to Section 3 of the applicable Mortgage Loan
Purchase Agreement, the Controlling Class Option Holder, the applicable
Companion Holder, the One Post Office Square Controlling Holder or the Special
Servicer pursuant to Section 3.18 or the Servicer, Special Servicer, the Holders
of the Controlling Class, or the Holders of the Class LR Certificates pursuant
to Section 9.01) that there has been a recovery of all Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenue and other payments or
recoveries that, in the Special Servicer's judgment, which judgment was
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"FIRREA": The Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, as it may be amended from time to time.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, P&I Advances, Liquidation Fees,
interest on Advances, Servicing Fees, Special Servicing Fees and additional
Trust Fund expenses over (ii) the Purchase Price for such Mortgage Loan on the
date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A custodial account or accounts
created and maintained by the Paying Agent, pursuant to Section 3.04(d) on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "LaSalle Bank National Association, as Paying Agent, in trust for the
registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1, Gain-on-Sale
Reserve Account." Any such account shall be an Eligible Account or a subaccount
of an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account, beneficial ownership of which is
represented by the Class NR Certificates.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder, the One Post
Office Square Representative, the Paying Agent and any and all Affiliates
thereof, (ii) does not have any material direct financial interest in or any
material indirect financial interest in any of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder, the Paying
Agent or any Affiliate thereof and (iii) is not connected with the Trustee, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder,
the One Post Office Square Representative, the Paying Agent or any Affiliate
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director or Person performing similar functions; provided, however, that a
Person shall not fail to be Independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Paying Agent or any Affiliate thereof merely
because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder, the One Post Office Square
Representative, the Paying Agent or any Affiliate thereof, as the case may be
provided ownership constitutes less than 1% of the total assets of such person.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Servicer, the Paying Agent or the Trust, delivered to the Trustee, the Paying
Agent and the Servicer), so long as the Trust does not receive or derive any
income from such Person and provided that the relationship between such Person
and the Trust is at arm's length, all within the meaning of Treasury Regulations
Section 1.856-4(b)(5) (except that the Servicer or the Special Servicer shall
not be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel has been delivered to the Trustee (and
with respect to the One Post Office Square Whole Loan, to the One Post Office
Square Representative) to that effect) or (ii) any other Person (including the
Servicer and the Special Servicer) upon receipt by the Trustee, the Paying Agent
and the Servicer of an Opinion of Counsel, which shall be at no expense to the
Trustee, the Paying Agent, the Servicer or the Trust Fund, to the effect that
the taking of any action in respect of any REO Property by such Person, subject
to any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc., ABN AMRO
Incorporated and Nomura Securities International, Inc.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Servicer as of the Closing Date,
the Sub-Servicer under any such Sub-Servicing Agreement.
"Initial Sub-Servicing Agreement": Any Sub-Servicing Agreement in
effect as of the Closing Date.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Interest Accrual Period": With respect to any Class of Regular
Certificates, Class PS Certificates, Uncertificated Lower-Tier Interests, or
Loan REMIC Regular Interests and any Distribution Date, the period beginning on
the first day of the calendar month preceding the calendar month in which the
related Distribution Date occurs and ending on the last day of the calendar
month preceding the calendar month in which such Distribution Date occurs,
calculated assuming that each month has 30 days and each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates or Class PS Certificates for any Distribution Date, an amount equal
to the sum of the Distributable Certificate Interest and the Class Unpaid
Interest Shortfall with respect to such Class of Regular Certificates or Class
PS Certificates for such Distribution Date.
"Interest Reserve Account": The trust account or subaccount created
and maintained by the Paying Agent pursuant to Section 3.26 in the name of
"LaSalle Bank National Association, as Paying Agent, in trust for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 0000-XX0, Xxxxxxxx Xxxxxxx Account,"
into which the amounts set forth in Section 3.25 shall be deposited directly and
which must be an Eligible Account or subaccount of an Eligible Account.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate, each Companion Holder (but only with respect to the related AB
Mortgage Loan or the One Post Office Square Whole Loan, as applicable) or any
Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon prior to the related Determination Date,
whether as payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
or otherwise, which represent late payments or collections of principal or
interest due in respect of such Mortgage Loan or Companion Loan (without regard
to any acceleration of amounts due thereunder by reason of default) on a Due
Date prior to the immediately preceding Determination Date and not previously
recovered. With respect to any REO Loan, all amounts received in connection with
the related REO Property prior to the related Determination Date, whether as
Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of principal or interest due or
deemed due in respect of such REO Loan or the predecessor Mortgage Loan or
Companion Loan (without regard to any acceleration of amounts due under the
predecessor Mortgage Loan or Companion Loan by reason of default) on a Due Date
prior to the immediately preceding Determination Date and not previously
recovered. The term "Late Collections" shall specifically exclude Penalty
Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 3
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b) or the One Post Office Square Controlling Holder
pursuant to Sections 3.18(d) or 3.18(g); (v) such Mortgage Loan is purchased by
the Special Servicer, the Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01; or (vi) such
Mortgage Loan is purchased by the applicable Companion Holder pursuant to
Section 3.18(e). With respect to any REO Property (and the related REO Loan),
any of the following events: (i) a Final Recovery Determination is made with
respect to such REO Property; (ii) such REO Property is purchased by the
Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates pursuant to Section 9.01; or (iii) such REO
Property is purchased by the applicable Companion Holder pursuant to Section
3.18(e).
"Liquidation Expenses": All customary reasonable and necessary "out
of pocket" costs and expenses incurred by the Special Servicer on Specially
Serviced Mortgage Loan or REO Property pursuant to Section 3.18 (including,
without limitation, legal fees and expenses, committee or referee fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a work out) with respect thereto from the related Mortgagor or any
Liquidation Proceeds or Insurance and Condemnation Proceeds with respect to the
related Mortgage Loan (in any case, other than amounts for which a Workout Fee
has been paid, or will be payable), equal to the product of the Liquidation Fee
Rate and the proceeds of such full or discounted payoff or other partial payment
the Liquidation Proceeds or Insurance and Condemnation Proceeds (net of the
related costs and expenses associated with the related liquidation) related to
such liquidated Specially Serviced Mortgage Loan, as the case may be; provided,
however, that no Liquidation Fee shall be payable with respect to (i) clause
(iii)(A) of the definition of "Liquidation Proceeds," (ii) clause (iv) of the
definition of "Liquidation Proceeds" if such repurchase occurs within the time
parameters set forth in this Agreement and in the related Mortgage Loan Purchase
Agreement or, if such repurchase occurs after such time period, the applicable
Mortgage Loan Seller was acting in good faith to resolve such breach or defect
or (iii) clause (v) and, as long as the repurchase occurs within the time period
provided for in the underlying mezzanine intercreditor agreements, clause
(vi)(a), (b), or (c) of the definition of "Liquidation Proceeds."
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, or Corrected Mortgage Loan through a trustee's sale, foreclosure
sale, REO Disposition or otherwise, exclusive of any portion thereof required to
be released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) (A)
the purchase of a Defaulted Mortgage Loan (including the One Post Office Square
B Note) by the Majority Controlling Class Certificateholder, the One Post Office
Square Controlling Holder, the Special Servicer or the Servicer pursuant to
Section 3.18(a) or Sections 3.18(d) or 3.18(g) (in the case of the One Post
Office Square Controlling Holder) or (B) any other sale thereof pursuant to
Section 3.18(c), Section 3.18(e), Section 3.18(f) or Section 3.18(g); (iv) the
repurchase of a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to
Section 3 of the related Mortgage Loan Purchase Agreement; (v) the purchase of a
Mortgage Loan or REO Property by the Holders of the Controlling Class, the
Special Servicer, the Servicer or the Holders of the Class LR Certificates
pursuant to Section 9.01; or (vi) the purchase of a Mortgage Loan or an REO
Property by (a) the Companion Holder pursuant to Section 3.18(e) or (b) any
other mezzanine lender of the related Mortgage Loan or REO Loan.
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that are
Group 1 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 1 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 1; provided, that
the Loan Group 1 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Mortgage Loans in Loan Group 1 in a period during
which such principal collections would have otherwise been included in the Loan
Group 1 Principal Distribution Amount for such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans in Loan Group 1 in a period during
which such principal collections would have otherwise been included in the Loan
Group 1 Principal Distribution Amount for such Distribution Date (provided,
that, in the case of clause (i) and (ii) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans in Loan Group 1 are
subsequently recovered on the related Mortgage Loan Group 1, such recovery will
increase the Loan Group 1 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs).
"Loan Group 1 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 1
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1 and Class A-2 Certificates, exceeds (2) the
aggregate amount distributed in respect of principal on the Class A-1 and Class
A-2 Certificates on the prior Distribution Date. There will be no Loan Group 1
Principal Shortfall on the first Distribution Date.
"Loan Group 2": Collectively, all of the Mortgage Loans that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Available Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b) that portion, if any, of the Scheduled
Principal Distribution Amount for such Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of the Unscheduled Principal Distribution
Amount for such Distribution Date attributable to Loan Group 2; provided, that
the Loan Group 2 Principal Distribution Amount for any Distribution Date shall
be reduced by the amount of any reimbursements of (i) Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are paid or reimbursed from
principal collections on the Mortgage Loans in Loan Group 2 in a period during
which such principal collections would have otherwise been included in the Loan
Group 2 Principal Distribution Amount for such Distribution Date and (ii)
Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans in Loan Group 2 in a period during
which such principal collections would have otherwise been included in the Loan
Group 2 Principal Distribution Amount for such Distribution Date (provided,
that, in the case of clause (i) and (ii) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans in Loan Group 2 are
subsequently recovered on the related Mortgage Loan Group 2, such recovery will
increase the Loan Group 2 Principal Distribution Amount for the Distribution
Date related to the period in which such recovery occurs).
"Loan Group 2 Principal Shortfall": With respect to any Distribution
Date, the amount, if any, by which (1) the lesser of (a) the Loan Group 2
Principal Distribution Amount for the prior Distribution Date and (b) the
Certificate Balance of the Class A-1A Certificates, exceeds (2) the aggregate
amount distributed in respect of principal on the Class A-1A Certificates on the
prior Distribution Date. There will be no Loan Group 2 Principal Shortfall on
the first Distribution Date.
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan. As used in this Agreement, the term "Loan Pair" shall include the
One Post Office Square Whole Loan.
"Loan REMIC": The segregated pool of assets subject hereto
constituting a portion of the primary trust created hereby and to be
administered hereunder with respect to which a separate REMIC election is to be
made and consisting of: (i) the Xxx Xxxx Xxxxxx Xxxxxx Xxxxxxxx X Note as from
time to time subject to this Agreement and all payments under and proceeds of
the One Post Office Square B Note received after the Closing Date, together with
all documents included in the related Mortgage Files and any related Escrow
Payments and reserves; (ii) an allocable portion of any REO Property acquired in
respect of the One Post Office Square B Note; (iii) Withheld Amounts in the
Interest Reserve Account with respect to the One Post Office Square B Note; (iv)
the portion of the Certificate Account with respect to the One Post Office
Square B Note and the Loan REMIC Distribution Account; (v) any amount held in
the Gain-on-Sale Reserve Account with respect to the One Post Office Square B
Note; (vi) the rights of the Depositor under Sections 2, 3, 9, 10, 11, 12, 13,
14, 16, 17 and 18 of the Mortgage Loan Purchase Agreement with respect to the
One Post Office Square B Note; and (vii) the rights of the mortgagee under all
Insurance Policies with respect to the One Post Office Square B Note.
"Loan REMIC Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1, Loan REMIC Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Loan REMIC Principal Amount": The principal amount of each of the
Loan REMIC Regular Interests outstanding as of any date of determination. As of
the Closing Date, the Loan REMIC Principal Amount for each of the Loan REMIC
Regular Interests is as set forth in the Preliminary Statement.
"Loan REMIC Regular Interest": Each of the Class KPS-1
Uncertificated Interest, Class KPS-2 Uncertificated Interest, Class KPS-3
Uncertificated Interest, Class KPS-4 Uncertificated Interest, Class KPS-5
Uncertificated Interest, Class KPS-6 Uncertificated Interest and Class KPS-7
Uncertificated Interest.
"Loan REMIC Residual Interest": The sole class of "residual
interests" in the Loan REMIC for purposes of the REMIC Provisions and evidenced
by the Class LR Certificates.
"Lower-Tier Distribution Account": The segregated account, accounts
or sub-accounts created and maintained by the Paying Agent pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Paying Agent, in trust for the registered Holders
of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 0000-XX0, Xxxxx-Xxxx Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class
as specified in the Preliminary Statement hereto, and (ii) as of any date of
determination after the first Distribution Date, an amount equal to the
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)), and in the case of the Class LA-1-1, Class
LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-1-6, Class LA-1A-1,
Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7, Class LA-1A-8, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LF-1,
Class LF-2, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class LL-1 and Class
LL-2 Uncertificated Interests, as set forth in Section 4.01(b).
"Lower-Tier PS Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Regular Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier REMIC": One of three separate REMICs comprising the
Trust Fund, the assets of which consist of the Majority Mortgage Loans
(exclusive of Excess Interest), any REO Property with respect thereto (or an
allocable portion thereof, in the case of the AB Mortgage Loans or the One Post
Office Square Whole Loan), the Loan REMIC Regular Interests, such amounts as
shall from time to time be held in the Certificate Account, the REO Account, if
any, the Interest Reserve Account, the Gain-on-Sale Reserve Account and the
Lower-Tier Distribution Account with respect thereto, and all other property
included in the Trust Fund that is not in the Loan REMIC, the Upper-Tier REMIC
or the Grantor Trust.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Majority Mortgage Loans": All Mortgage Loans except the One Post
Office Square B Note.
"Maple Gardens AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 63.
"Maple Gardens Companion Holder": The holder of the Maple Gardens
Companion Loan.
"Maple Gardens Companion Loan": That certain loan evidenced by a
note, which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the Maple Gardens AB Mortgage Loan.
"Maple Gardens Intercreditor Agreement": That certain Agreement
Among Note Holders, dated as of August 22, 2003 between JPMorgan Chase Bank, as
Note A Holder, and CBA-Mezzanine Capital Finance, LLC, as Note B Holder. The
Maple Gardens Intercreditor Agreement relates to the Maple Gardens AB Mortgage
Loan.
"Maple Gardens Loan Pair": The Maple Gardens AB Mortgage Loan,
together with the Maple Gardens Companion Loan.
"Maple Gardens Mortgaged Property": The property subject to the lien
of the Mortgage securing the Maple Gardens Loan Pair.
"Maturity Date": With respect to any Mortgage Loan or Companion Loan
as of any date of determination, the date on which the last payment of principal
is due and payable under the related Mortgage Note, after taking into account
all Principal Prepayments received prior to such date of determination, but
without giving effect to (i) any acceleration of the principal of such Mortgage
Loan or Companion Loan by reason of default thereunder or (ii) any grace period
permitted by the related Mortgage Note.
"Monthly Additional Report on Recoveries and Reimbursements": With
respect to the one-month period immediately prior to the related Determination
Date, a report, in a format reasonably acceptable to the Servicer, the Special
Servicer, the Paying Agent and the Trustee that identifies the following with
respect to such period, in all cases both on a loan-by-loan basis and in the
aggregate:
(a) the amount of any Advance (and accrued and unpaid interest
thereon) that became a Workout-Delayed Reimbursement Amount during such
period;
(b)(i) the amount of any Workout-Delayed Reimbursement Amount that
was reimbursed to the Servicer, the Special Servicer or the Trustee during
such period, (ii) the extent to which any reimbursement of a
Workout-Delayed Reimbursement Amount made during such period was made from
principal collections on the related Mortgage Loan received during such
period as contemplated by subsections (iii) and (iv) of Section 3.05(a),
(iii) the extent to which any reimbursement of a Workout-Delayed
Reimbursement Amount made during such period was made from principal
collections on the remainder of the Mortgage Loans received during such
period as contemplated by subsections (iii) and (iv) of Section 3.05(a)
and (iv) the amount of any related Unliquidated Advances;
(c)(i) the amount of any Unliquidated Advances recovered from the
related Mortgagor or otherwise from the proceeds of the related Mortgage
Loan or REO Property on behalf of the Trust during the one-month period
immediately prior to the related Determination Date and (ii) the extent to
which any such recovery constitutes an amount described by the proviso in
parenthesis in the definition of "Principal Distribution Amount", "Loan
Group 1 Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount";
(d)(i) the amount of any Unliquidated Advance that became a
Nonrecoverable Advance in the one-month period immediately prior to the
related Determination Date, and (ii) the amount of any Workout-Delayed
Reimbursement Amount that arose in a prior such period, was not reimbursed
to the Servicer, the Special Servicer or the Trustee in the one-month
period immediately prior to the related Determination Date or a prior such
period (and therefore had not become an Unliquidated Advance) but which
has become a Nonrecoverable Advance in the one-month period immediately
prior to the related Determination Date;
(e) the amount of any Advance (and accrued and unpaid interest
thereon), other than an amount described in clause (d) above, that became
a Nonrecoverable Advance during such one-month period immediately prior to
the related Determination Date;
(f)(i) the amount of any Nonrecoverable Advance (and accrued and
unpaid interest thereon) that was reimbursed to the Servicer, the Special
Servicer or the Trustee during the one-month period immediately prior to
the related Determination Date, and (ii) the extent (if any) to which any
reimbursement of a Nonrecoverable Advance (and accrued and interest
thereon) was made from principal collections on the Mortgage Loans
received during such period as contemplated by subsection (v) of Section
3.05(a);
(g)(i) the amount of any Advance reimbursed to the Servicer, the
Special Servicer or the Trustee as a Nonrecoverable Advance in a prior
one-month period immediately prior to the related Determination Date but
recovered from the related Mortgagor or otherwise from the proceeds of the
related Mortgage Loan or REO Property on behalf of the Trust during the
one-month period immediately prior to the related Determination Date
(notwithstanding that it was previously determined to constitute a
Nonrecoverable Advance) and (ii) the extent to which any such amount is an
amount described by the proviso in parenthesis in the definition of
"Principal Distribution Amount", "Loan Group 1 Principal Distribution
Amount" or "Loan Group 2 Principal Distribution Amount"; and
(h) a reconciliation of interest on Advances accrued on any
Workout-Delayed Reimbursement Amount or any Nonrecoverable Advance, any
Default Penalties collected during the related one-month period
immediately prior to the related Determination Date and the amount of
Default Penalties that were applied to pay such interest on Advances.
The preparation of each Monthly Additional Report on Recoveries and
Reimbursements shall constitute a responsibility of the Servicer and shall not
constitute a responsibility of any other party. Each CMSA Loan Periodic Update
File prepared by the Servicer shall be accompanied by a Monthly Additional
Report on Recoveries and Reimbursements.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled monthly payment of principal and/or interest (other than Excess
Interest) on such Mortgage Loan, including any Balloon Payment, which is payable
(as the terms of the applicable Mortgage Loan may be changed or modified in
connection with a bankruptcy or similar proceedings involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to pursuant to the terms hereof) by a Mortgagor from time to time
under the related Mortgage Note and applicable law, without regard to any
acceleration of principal of such Mortgage Loan by reason of default thereunder
and without respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Servicer, the Paying Agent and the Special Servicer, and specific
ratings of Moody's herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee and/or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonge showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse,
representation or warranty, express or implied to the order of the
Trustee in the following form: "Pay to the order of U.S. Bank
National Association, as trustee for the registered holders of X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-LN1"; or in blank
provided that the requirements of this clause (i) will be satisfied
by delivery of a signed lost note affidavit and indemnity properly
assigned or endorsed to the Trustee as described above, with a copy
of the Mortgage Note attached to it;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the most recent assignee
of record thereof prior to the Trustee, or if none, by the
originator to "U.S. Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-LN1";
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage and to the
extent not already assigned pursuant to preceding clause (iii)), in
recordable form (except for recording information not yet available
if the instrument being assigned has not been returned from the
applicable recording office), executed by the applicable assignee of
record to "U.S. Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-LN1";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form (except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), executed by the applicable Mortgage Loan Seller
to "U.S. Bank National Association, as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1";
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment, or the pro forma or specimen title insurance policy
(marked as binding and in all cases countersigned by the title
insurer or its authorized agent) or an agreement to provide the same
pursuant to moneylender's escrow trust instructions executed by an
authorized representative of the title insurance company, provided
the policy is issued within 180 days, in connection with the related
Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon, but only to the extent the Mortgage Loan Seller
or its servicer or originator had possession of such UCC Financing
Statement prior to the Closing Date), and to transfer such security
interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lending agreement, a subordination agreement or
intercreditor agreement, pursuant to which such Additional Debt will
be fully subordinated to such Mortgage Loan;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof and any
related ground lessor estoppels;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within thirty (30) days of the Closing Date, a copy of the
appropriate transfer or assignment documents for such letter of
credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) [RESERVED];
(xxiii) a copy of any lock-box or cash management
agreement(s);
(xxiv) a list related to such Mortgage Loan indicating the
related Mortgage Documents included in the related Mortgage File
(the "Mortgage Loan Checklist");
(xxv) a copy of all environmental reports relating to the
relevant Mortgaged property; and
(xxvi) with respect to each Companion Loan, all of the above
documents with respect to such Companion Loan and the related AB
Intercreditor Agreement; provided that a copy of each mortgage note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan"
shall include the One Post Office Square B Note. In addition, as used in this
Agreement, the term "Mortgage Loan" does not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number and loan servicing number (as
specified in Exhibit A to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(xiii) whether such Mortgage Loan has an Anticipated Repayment
Date;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds that were
deposited at origination and any ongoing periodic deposit
requirements;
(xxi) number of grace days;
(xxii) whether a cash management agreement or lock-box
agreement is in place;
(xxiii) the general property type of the related Mortgaged
Property;
(xxiv) whether the Mortgage Loan permits defeasance;
(xxv) the interest accrual period;
(xxvi) the Anticipated Prepayment Date, if applicable; and
(xxvii) in the case of a Balloon Mortgage Loan, the remaining
amortization term.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, a New York
banking corporation, or its successor in interest, (2) LaSalle Bank National
Association, a national banking association or its successor in interest, and
(3) Nomura Credit & Capital, Inc., a Delaware corporation, or its successor in
interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan or Companion
Loan on or prior to its Maturity Date, the annual rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan or
Companion Loan from time to time in accordance with the related Mortgage Note
and applicable law, exclusive of the Excess Rate; or (ii) any Mortgage Loan or
Companion Loan after its Maturity Date, the annual rate described in clause (i)
above determined without regard to the passage of such Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Servicer in the Certificate
Account for such Distribution Date pursuant to Section 3.19 in connection with
such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Servicing Accounts or the REO Account for any period from any Distribution
Date to the immediately succeeding P&I Advance Date, the amount, if any, by
which the aggregate of all interest and other income realized during such period
on funds relating to the Trust Fund held in such account, exceeds the aggregate
of all losses, if any, incurred during such period in connection with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Servicing Accounts or the REO Account for any period from any Distribution Date
to the immediately succeeding P&I Advance Date, the amount by which the
aggregate of all losses, if any, incurred during such period in connection with
the investment of funds relating to the Trust Fund held in such account in
accordance with Section 3.06, exceeds the aggregate of all interest and other
income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
as of any date of determination, a rate per annum equal to the related Mortgage
Rate then in effect, minus the Administrative Cost Rate; provided, however,
that, for purposes of calculating Pass-Through Rates, the Net Mortgage Rate for
any Mortgage Loan will be determined without regard to any modification, waiver
or amendment of the terms of such Mortgage Loan, whether agreed to by the
Servicer or the Special Servicer or resulting from a bankruptcy, insolvency or
similar proceeding involving the Mortgagor; provided, further, that if any
Mortgage Loan does not accrue interest on the basis of a 360-day year consisting
of twelve 30-day months, then, solely for purposes of calculating Pass-Through
Rates, the Net Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Default Interest or Excess Interest) in
respect of such Mortgage Loan during such one-month period at the related Net
Mortgage Rate; provided, further, that, with respect to each Interest Reserve
Loan, the Net Mortgage Rate for the one month period (A) preceding the Due Dates
that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year,
and (B) preceding the Due Date in March, will be the per annum rate stated in
the related Mortgage Note less the related Administrative Cost Rate. With
respect to any REO Loan, the Net Mortgage Rate shall be calculated as described
above, determined as if the predecessor Mortgage Loan had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class A-1A, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class NR, Class PS-1,
Class PS-2, Class PS-3, Class PS-4, Class PS-5, Class PS-6, Class PS-7, Class R
or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan that is not a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) if such Person is a U.S.
Person with respect to whom income from a Residual Certificate is attributable
to a foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the Trustee, as applicable, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Mortgage
Loan, REO Loan or Companion Loan; provided, however, that the Special Servicer
may, at its option, make a determination in accordance with the Servicing
Standards, that any P&I Advance previously made or proposed to be made is a
Nonrecoverable P&I Advance and shall deliver to the Servicer and the Trustee
notice of such determination. Any such determination shall be conclusive and
binding on the Servicer and the Trustee. In making such recoverability
determination, such Person will be entitled to consider (among other things)
only the obligations of the Mortgagor under the terms of the related Mortgage
Loan as it may have been modified, to consider (among other things) the related
Mortgaged Properties in their "as is" or then current conditions and
occupancies, as modified by such party's assumptions (consistent with the
Servicing Standards in the case of the Servicer) regarding the possibility and
effects of future adverse change with respect to such Mortgaged Properties, to
estimate and consider (among other things) future expenses and to estimate and
consider (consistent with the Servicing Standards in the case of the Servicer)
(among other things) the timing of recoveries. In addition, any such Person may
update or change its recoverability determinations at any time and, consistent
with the Servicing Standards in the case of the Servicer, may obtain from the
Special Servicer any reasonably required analysis, Appraisals or market value
estimates or other information in the Special Servicer's possession for such
purposes. Absent bad faith, the Servicer's or Special Servicer's determination
as to the recoverability of any P&I Advance shall be conclusive and binding on
the Certificateholders. The determination by the Servicer or the Special
Servicer or the Trustee, as applicable, that it has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, or any updated or changed recoverability
determination, shall be evidenced by an Officer's Certificate delivered by the
Servicer or the Special Servicer to the Trustee, the Special Servicer, the
Directing Certificateholder (and in the case of the One Post Office Square
Mortgage Loan and the One Post Office Square B Note, the One Post Office Square
Representative), the Paying Agent and the Depositor, or by the Trustee to the
Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder, as applicable. The Officer's Certificate shall set
forth such determination of nonrecoverability and the considerations of the
Servicer or the Trustee, as applicable, forming the basis of such determination
(which shall be accompanied by, to the extent available, income and expense
statements, rent rolls, occupancy status, property inspections and any other
information used by the Servicer or the Trustee, as applicable, to make such
determination and shall include any existing Appraisal of the related Mortgage
Loan or Mortgaged Property). The Trustee shall be entitled to conclusively rely
on the Servicer's determination that a P&I Advance is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the Servicer, the Special Servicer or the Trustee,
as the case may be, will not be ultimately recoverable, together with any
accrued and unpaid interest thereon, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Property. In making such
recoverability determination, such Person will be entitled to consider (among
other things) only the obligations of the Mortgagor under the terms of the
related Mortgage Loan as it may have been modified, to consider (among other
things) the related Mortgaged Properties in their "as is" or then current
conditions and occupancies, as modified by such party's assumptions (consistent
with the Servicing Standards in the case of the Servicer) regarding the
possibility and effects of future adverse change with respect to such Mortgaged
Properties, to estimate and consider (consistent with the Servicing Standards in
the case of the Servicer) (among other things) future expenses and to estimate
and consider (among other things) the timing of recoveries. In addition, any
such Person may update or change its recoverability determinations at any time
and, consistent with the Servicing Standards in the case of the Servicer, may
obtain from the Special Servicer any reasonably required analysis, Appraisals or
market value estimates or other information in the Special Servicer's possession
for such purposes. The determination by the Servicer, the Special Servicer or
the Trustee, as the case may be, that it has made a Nonrecoverable Servicing
Advance or that any proposed Servicing Advance, if made, would constitute a
Nonrecoverable Servicing Advance, or any updated or changed recoverability
determination, shall be evidenced by an Officer's Certificate delivered by
either of the Special Servicer or Servicer to the other and to the Trustee, the
Directing Certificateholder (and in the case of the One Post Office Square
Mortgage Loan and the One Post Office Square B Note, the One Post Office Square
Representative), the Paying Agent and the Depositor, or by the Trustee to the
Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Directing Certificateholder, as applicable; provided, however, that the Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standards, that any Servicing Advance previously made or proposed to
be made is a Nonrecoverable Servicing Advance and shall deliver to the Servicer
and the Trustee notice of such determination. Any such determination shall be
conclusive and binding on the Servicer and the Trustee. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the Servicer, the Special Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall be accompanied
by, to the extent available, such as related income and expense statements, rent
rolls, occupancy status and property inspections, and shall include an Appraisal
of the related Mortgage Loan or Mortgaged Property). The Special Servicer shall
promptly furnish any party required to make Servicing Advances hereunder with
any information in its possession regarding the Specially Serviced Mortgage
Loans and REO Properties as such party required to make Servicing Advances may
reasonably request for purposes of making recoverability determinations. The
Trustee will be entitled to conclusively rely on the Servicer's or Special
Servicer's, as the case may be, determination that a Servicing Advance is or
would be nonrecoverable. In the case of a cross-collateralized Mortgage Loan,
such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee, as the case may be.
"One Post Office Square A Notes": Collectively, the One Post Office
Square Mortgage Loan and the One Post Office Square Companion Note.
"One Post Office Square B Note": With respect to the One Post Office
Square Whole Loan, the related promissory note made by the related Mortgagor and
secured by the Mortgage on the One Post Office Square Mortgaged Property and
designated as promissory note B, which is included in the Trust and which is
subordinate in right of payment to the One Post Office Square A Notes to the
extent set forth in the One Post Office Square Whole Loan and as provided in the
One Post Office Square Intercreditor Agreement.
"One Post Office Square B Note Available Distribution Amount": With
respect to any Distribution Date and the One Post Office Square B Note, an
amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the One Post Office Square B
Note on deposit (exclusive of any Net Investment Earnings) in the Loan
REMIC Distribution Account as of the close of business on the related P&I
Advance Date (all such amounts, to the extent allocable to the Xxx Xxxx
Xxxxxx Xxxxxx X Note pursuant to the One Post Office Square Intercreditor
Agreement), exclusive of (without duplication):
(i) all Monthly Payments that are due on a Due Date following
the end of the related Due Period with respect to such Mortgage
Loan;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
related Due Date for the related Mortgage Loan), Liquidation
Proceeds and Insurance and Condemnation Proceeds received subsequent
to the related Determination Date (or, with respect to voluntary
Principal Prepayments, if the related Due Date occurs after the
related Determination Date, the related Due Date) with respect to
such Mortgage Loan;
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account with respect to such Mortgage Loan pursuant
to clauses (ii) through (xvi), inclusive, and (xx) of Section
3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Loan REMIC Distribution Account pursuant to clauses (iii)
through (viii), inclusive, of Section 3.05(b);
(v) all Yield Maintenance Charges with respect to such
Mortgage Loan;
(vi) all amounts deposited in the Certificate Account with
respect to such Mortgage Loan or Loan REMIC Distribution Account, as
the case may be, in error; and
(vii) with respect to any Distribution Date relating to each
Interest Accrual Period ending in (1) each January or (2) any
December in a year immediately preceding a year which is not a leap
year, an amount equal to one day of interest on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the month
preceding the month in which such Distribution Date occurs at the
related Mortgage Rate to the extent such amounts are to be deposited
in the Interest Reserve Account and held for future distribution
pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account in respect of such
Mortgage Loan to the Certificate Account for such Distribution Date
pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee) with respect to such
Mortgage Loan; and
(d) for the Distribution Date occurring in each March, the Withheld
Amount for such Mortgage Loan remitted to the Loan REMIC Distribution
Account pursuant to Section 3.26(b).
"One Post Office Square B Note Collateral Support Deficit": As
defined in Section 4.04(d).
"One Post Office Square B Note Purchase Option": As defined in
Section 3.18(g).
"One Post Office Square B Noteholder": The holder of the One Post
Office Square B Note.
"One Post Office Square B Note Principal Distribution Amount": With
respect to any Distribution Date, an amount equal to the sum of (a) the One Post
Office Square B Note Principal Shortfall for such Distribution Date, (b) the One
Post Office Square B Note Scheduled Principal Distribution Amount for such
Distribution Date and (c) the One Post Office Square B Note Unscheduled
Principal Distribution Amount for such Distribution Date.
"One Post Office Square B Note Principal Shortfall": For any
Distribution Date after the initial Distribution Date, the amount, if any, by
which (a) the One Post Office Square B Note Principal Distribution Amount for
the preceding Distribution Date, exceeds (b) the aggregate amount distributed in
respect of principal on the Class PS Certificates for such preceding
Distribution Date. The One Post Office Square B Note Principal Shortfall for the
initial Distribution Date will be zero.
"One Post Office Square B Note Scheduled Principal Distribution
Amount": With respect to any Distribution Date and the One Post Office Square B
Note, and to the extent allocable to the Xxx Xxxx Xxxxxx Xxxxxx X Note pursuant
to the One Post Office Square Intercreditor Agreement, the aggregate of the
principal portions of (a) the Monthly Payment (excluding a Balloon Payment) due
in respect of the One Post Office Square B Note during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 of this Agreement
in respect of a preceding Distribution Date, prior to, the related Due Period,
and any Assumed Scheduled Payment for the related Due Period, in each case, to
the extent either (i) paid by the related Mortgagor as of the Business Day
preceding the related P&I Advance Date (and not previously distributed to
Certificateholders of the Class PS Certificates) or (ii) advanced by the
Servicer or the Trustee, as applicable, pursuant to Section 4.03 of this
Agreement in respect of such Distribution Date, and (b) any Balloon Payment in
respect of the One Post Office Square B Note to the extent received during the
related Due Period (including any applicable grace periods), and to the extent
not included in clause (a) above.
"One Post Office Square B Note Remittance Rate": As specified in the
Preliminary Statement.
"One Post Office Square B Note Unscheduled Principal Distribution
Amount": With respect to any Distribution Date and the One Post Office Square B
Note (to the extent allocable to the Xxx Xxxx Xxxxxx Xxxxxx X Note pursuant to
the One Post Office Square Intercreditor Agreement), the aggregate of:
(a) all Principal Prepayments received on the One Post Office Square
B Note during the related Due Period; and
(b) the principal portions of all Liquidation Proceeds, Insurance
Proceeds, Condemnation Proceeds and, if applicable, REO Revenues received
with respect to the One Post Office Square B Note and the related REO
Loans, if any, during the related Due Period, but in each case only to the
extent that such principal portion represents a recovery of principal for
which no advance was previously made pursuant to Section 4.03 of this
Agreement in respect of a preceding Distribution Date.
"One Post Office Square Companion Loan Noteholder": The holder of
the One Post Office Square Companion Note.
"One Post Office Square Companion Loan Securities": For so long as
the One Post Office Square Mortgage Loan, the One Post Office Square B Note or a
successor REO Mortgage Loan with respect to the One Post Office Square Mortgage
Loan or the One Post Office Square B Note is part of the Trust Fund, any class
of securities backed, wholly or partially, by the One Post Office Square
Companion Note.
"One Post Office Square Companion Note": With respect to the One
Post Office Square Whole Loan, the related promissory note made by the One Post
Office Square Mortgagor and secured by the Mortgage on the One Post Office
Square Mortgaged Property and designated as Promissory Companion Loan, which is
not included in the Trust, that is senior in right of payment to the One Post
Office Square B Note and pari passu in right of payment with the One Post Office
Square Mortgage Loan to the extent set forth in the One Post Office Square Whole
Loan and as provided in the One Post Office Square Intercreditor Agreement.
"One Post Office Square Control Appraisal Event": A "One Post Office
Square Control Appraisal Event" will exist with respect to the One Post Office
Square Whole Loan, if and for so long as a "Control Appraisal Event" has
occurred and is continuing pursuant to the One Post Office Square Intercreditor
Agreement.
"One Post Office Square Controlling Holder": As defined in Section
3.29(j).
"One Post Office Square Event of Default": An "Event of Default" as
defined under the One Post Office Square Whole Loan documents.
"One Post Office Square Intercreditor Agreement": The intercreditor
agreement, by and among the holders of the One Post Office Square A Notes and
the holder of the One Post Office Square B Note, relating to the relative rights
of such holders of the One Post Office Square Mortgage Whole Loan, as the same
may be further amended in accordance with the terms thereof.
"One Post Office Square Mortgage Loan": With respect to the One Post
Office Square Whole Loan, the mortgage loan which is included in the Trust
(identified as Mortgage Loan No. 1 on the Mortgage Loan Schedule), which is
senior in right of payment to the related One Post Office Square B Note and pari
passu in right of payment to the One Post Office Square Companion Note to the
extent set forth in the One Post Office Whole Loan and as provided in the One
Post Office Square Intercreditor Agreement.
"One Post Office Square Mortgaged Property": The mortgaged property
which secures the One Post Office Square Whole Loan.
"One Post Office Square Whole Loan": The One Post Office Square
Mortgage Loan, together with the One Post Office Square B Note and the One Post
Office Square Companion Note, each of which is secured by the same Mortgage on
the One Post Office Square Mortgaged Property. References herein to the One Post
Office Square Whole Loan shall be construed to refer to the aggregate
indebtedness under the One Post Office Square A Notes and the One Post Office
Square B Note.
"One Post Office Square Representative" As defined in Section
3.29(j).
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Trustee and the Paying Agent,
except that any opinion of counsel relating to (a) the qualification of the
Upper-Tier REMIC, Lower-Tier REMIC or Loan REMIC as a REMIC, (b) compliance with
the REMIC Provisions, (c) qualification of the Grantor Trust as a grantor trust
under subpart E, Part I of subchapter J of the Code for federal income tax
purposes or (d) the resignation of the Servicer, the Special Servicer or the
Depositor pursuant to Section 6.04, must be an opinion of counsel who is in fact
Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X and the Residual Certificates), the initial
aggregate principal amount thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Loan REMIC Principal Amount": With respect to any Class of
Loan REMIC Regular Interests, the initial principal amount thereof as of the
Closing Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class A-1A Pass-Through Rate, the Class B
Pass-Through Rate, the Class C Pass-Through Rate, the Class D Pass-Through Rate,
the Class E Pass-Through Rate, the Class F Pass-Through Rate, the Class G
Pass-Through Rate, the Class H Pass-Through Rate, the Class J Pass-Through Rate,
the Class K Pass-Through Rate, the Class L Pass-Through Rate, the Class M
Pass-Through Rate, the Class N Pass-Through Rate, the Class P Pass-Through Rate,
the Class NR Pass-Through Rate, the Class PS-1 Pass-Through Rate, the Class PS-2
Pass-Through Rate, the Class PS-3 Pass-Through Rate, the Class PS-4 Pass-Through
Rate, the Class PS-5 Pass-Through Rate, the Class PS-6 Pass-Through Rate, the
Class PS-7 Pass-Through Rate, the Class X-1 Pass-Through Rate or the Class X-2
Pass-Through Rate.
"Paying Agent": LaSalle Bank National Association, a national
banking association, or any successor appointed thereto pursuant to Section 5.07
or any successor paying agent appointed hereunder.
"Paying Agent Fee": The portion of the Trustee Fee payable to the
Paying Agent pursuant to the terms hereof calculated at the Paying Agent Fee
Rate.
"Paying Agent Fee Rate": 0.001% per annum.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge, or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Paying
Agent if otherwise qualifying hereunder), regardless whether issued by the
Depositor, the Servicer, the Special Servicer, the Trustee or any of their
respective Affiliates and having the required ratings, if any, provided for in
this definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac 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 that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) 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 in the highest rating categories of each
Rating Agency or such other rating as would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing;
(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;
(iv) debt obligations 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 mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each Rating Agency or such
other rating as would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as specified in writing by each of the
Rating Agencies; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the
extent that investment therein will cause the then-outstanding
principal amount of securities issued by such corporation and held
in the accounts established hereunder to exceed 10% of the sum of
the aggregate principal balance and the aggregate principal amount
of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each
Rating Agency (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies);
(vi) money market funds, rated in the highest rating
categories of each Rating Agency; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that in each case if the investment is rated by S&P, (a) it
shall not have an "r" highlighter affixed to its rating from S&P, (b) it shall
have a predetermined fixed dollar of principal due at maturity that cannot vary
or change and (c) any such investment that provides for a variable rate of
interest must have an interest rate that is tied to a single interest rate index
plus a fixed spread, if any, and move proportionately with such index; and
provided, further, however, that no such instrument shall be a Permitted
Investment (a) if such instrument evidences principal and interest payments
derived from obligations underlying such instrument and the interest payments
with respect to such instrument provide a yield to maturity at the time of
acquisition of greater than 120% of the yield to maturity at par of such
underlying obligations or (b) if such instrument may be redeemed at a price
below the purchase price; and provided, further, however, that no amount
beneficially owned by the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC (even if not yet deposited in the Trust) may be invested in investments
(other than money market funds) treated as equity interests for federal income
tax purposes, unless the Servicer receives an Opinion of Counsel, at its own
expense, to the effect that such investment will not adversely affect the status
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC under
the Code or result in imposition of a tax on the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMIC. Permitted Investments that are subject to
prepayment or call may not be purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees
and any Excess Interest), to the extent collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment from and after such Due Date
and ending on the date of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each mortgage loan with a Due Date occurring after the related Determination
Date, the related Due Date) and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any Prepayment Premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Collateral": With respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Primary Servicing Fee": The monthly fee payable by the Servicer
from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues
at the rate per annum specified as such in the Sub-Servicing Agreement with such
Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Paying Agent in its reasonable discretion) as may be in
effect from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Paying Agent in its reasonable discretion)
as may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to the sum of (a)
the Principal Shortfall for such Distribution Date, (b) the Scheduled Principal
Distribution Amount for such Distribution Date and (c) the Unscheduled Principal
Distribution Amount for such Distribution Date; provided, that the Principal
Distribution Amount for any Distribution Date shall be reduced by the amount of
any reimbursements of (i) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from principal collections
on the Mortgage Loans in a period during which such principal collections would
have otherwise been included in the Principal Distribution Amount for such
Distribution Date and (ii) Workout-Delayed Reimbursement Amounts that were paid
or reimbursed from principal collections on the Mortgage Loans in a period
during which such principal collections would have otherwise been included in
the Principal Distribution Amount for such Distribution Date (provided, that, in
the case of clause (i) and (ii) above, if any of the amounts that were
reimbursed from principal collections on the Mortgage Loans are subsequently
recovered on the related Mortgage Loan, such recovery will increase the
Principal Distribution Amount for the Distribution Date related to the period in
which such recovery occurs).
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeds (b) the aggregate amount distributed in respect of
principal on 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, Class N, Class P and Class NR
Certificates for such preceding Distribution Date pursuant to Section 4.01(a) on
such preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller and a certain financial market publisher (which initially shall be
Bloomberg, L.P.), the Companion Holder (but only with respect to its Companion
Loan) each party to this Agreement, the Directing Certificateholder, any
designee of the Depositor, the Paying Agent and any other Person who shall have
provided the Paying Agent with a certificate, using the form attached hereto as
Exhibit X, which form is available from the Paying Agent's website, certifying
that such Person is a Certificateholder, a beneficial owner or a prospective
purchaser of a Certificate.
"Prospectus": The Prospectus dated September 24, 2003, as
supplemented by the Prospectus Supplement dated September 24, 2003, relating to
the offering of the Offered Certificates.
"PS Component Balance": The initial PS Component Balance of each PS
Component is set forth in the Preliminary Statement. On each Distribution Date,
the PS Component Balance of each PS Component shall be reduced by the amount of
any distributions of principal allocated in respect of such PS Component on such
Distribution Date pursuant to Section 4.01(a), or Section 9.01, as applicable,
and shall be further reduced by the amount of any One Post Office Square B Note
Collateral Support Deficit and additional Trust Fund expenses incurred with
respect to the One Post Office Square B Note allocated to the related Class PS
Certificates on such Distribution Date pursuant to Section 4.04(a). The PS
Component Balance of each PS Component will be increased on any Distribution
Date by the amount of any Certificate Deferred Interest attributable to the One
Post Office Square B Note allocated to the related Class PS Certificates on such
Distribution Date. Distributions in respect of a reimbursement of a One Post
Office Square B Note Support Deficit and additional Trust Fund expenses in
respect of the One Post Office Square B Note previously allocated to any Class
of Class PS Certificates shall not constitute distributions of principal and
shall not result in reduction of the PS Component Balance of the related PS
Component.
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 3 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Servicer pursuant to Section
3.18(b), by the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates pursuant to Section 9.01 or to
be otherwise sold pursuant to Section 3.18(d), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Excess Interest) to but not including the
Due Date immediately preceding the Determination Date for the
related Distribution Date in which such Purchase Price is included
in the Available Distribution Amount; plus
(iii) all related Servicing Advances that are unreimbursed out
of collections from the Mortgage Loan and accrued and unpaid
interest on related Advances at the Reimbursement Rate, and any
Special Servicing Fees whether paid or then owing allocable to such
Mortgage Loan and all additional Trust Fund expenses in respect of
such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 3 of the applicable
Mortgage Loan Purchase Agreement, all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Servicer, the
Special Servicer, the Depositor and the Trustee in respect of the
Breach or Defect giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the repurchase
obligation, including, without limitation, all legal fees and
expenses and any expenses of the Trust Fund relating to such
Mortgage Loan (or REO Loan); plus
(v) Liquidation Fees payable with respect to such Mortgage
Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A3" by Xxxxx'x and "A-" by S&P
and (ii) with respect to the fidelity bond and errors and omissions Insurance
Policy required to be maintained pursuant to Section 3.07(c), except as set
forth in Section 3.07(c), an insurance company that has a claims paying ability
rated no lower than two ratings below the rating assigned to the then highest
rated outstanding Certificate, but in no event lower than "A3" by Xxxxx'x and
"A-" by S&P or, in the case of clauses (i) and (ii), such other rating as each
Rating Agency shall have confirmed in writing will not cause such Rating Agency
to downgrade, qualify or withdraw the then-current rating assigned to any of the
Certificates that are then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue
interest on the same basis as the deleted Mortgage Loan (for example, on the
basis of a 360-day year consisting of twelve 30-day months); (v) have a
remaining term to stated maturity not greater than, and not more than two years
less than, the remaining term to stated maturity of the deleted Mortgage Loan;
(vi) have a then current loan-to-value ratio not higher than that of the deleted
Mortgage Loan as of the Closing Date and a current loan-to-value ratio not
higher than the then current loan-to-value ratio of the deleted Mortgage Loan,
in each case using the "value" as determined using an MAI appraisal; (vii)
comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an environmental report that indicates no material adverse environmental
conditions with respect to the related Mortgaged Property and which will be
delivered as a part of the related Mortgage File; (ix) have a then current debt
service coverage ratio of not less than the original debt service coverage ratio
of the deleted Mortgage Loan as of the Closing Date and a current debt service
coverage ratio of not less than the current debt service coverage ratio of the
deleted Mortgage Loan; (x) constitute a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of
Counsel (provided at the applicable Mortgage Loan Seller's expense); (xi) not
have a maturity date or an amortization schedule after the date two years prior
to the Rated Final Distribution Date; (xii) have comparable prepayment
restrictions; (xiii) not be substituted for a deleted Mortgage Loan unless the
Trustee has received prior confirmation in writing by each Rating Agency that
such substitution will not result in the withdrawal, downgrade, or qualification
of the rating assigned by the Rating Agency to any Class of Certificates then
rated by the Rating Agency (the cost, if any, of obtaining such confirmation to
be paid by the applicable Mortgage Loan Seller); (xiv) have been approved by the
Directing Certificateholder; (xv) prohibit defeasance within two years of the
Closing Date; and (xvi) not be substituted for a deleted Mortgage Loan if it
would result in the termination of the REMIC status of any of the REMICs
established under this Agreement or the imposition of tax on any of such REMICs
other than a tax on income expressly permitted or contemplated to be received by
the terms of this Agreement, as determined by an Opinion of Counsel. In the
event that more than one mortgage loan is substituted for a deleted Mortgage
Loan, then the amounts described in clause (i) shall be determined on the basis
of aggregate Stated Principal Balances and each such proposed Substitute
Mortgage Loan shall individually satisfy each of the requirements specified in
(i) through (xvi) and the rates described in clause (ii) above and the remaining
term to stated maturity referred to in clause (v) above shall be determined on a
weighted average basis, provided that no individual Mortgage Rate (net of the
Servicing Fee Rate and the Trustee Fee Rate) shall be lower than the highest
fixed Pass-Through Rate (and not subject to a cap equal to the Weighted Average
Net Mortgage Rate) of any class of Regular Certificates having a principal
balance then outstanding. When a Qualified Substitute Mortgage Loan is
substituted for a deleted Mortgage Loan, (i) the applicable Mortgage Loan Seller
shall certify that the Mortgage Loan meets all of the requirements of the above
definition and shall send such certification to the Trustee and the Directing
Certificateholders and (ii) such Qualified Substitute Mortgage Loan shall become
part of the same Loan Group as the deleted Mortgage Loan. A Qualified Substitute
Mortgage Loan may not be substituted for either the One Post Office Square
Mortgage Loan or the One Post Office Square B Note.
"Rated Final Distribution Date": As to each Class of Certificates,
October 15, 2037, the first Distribution Date after the 24th month following the
end of the amortization term for the Mortgage Loan that, as of the Cut-off Date,
has the longest remaining amortization term.
"Rating Agency": Each of Xxxxx'x and S&P or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer, and specific ratings of Xxxxx'x and S&P herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Regular Certificate": Any of 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, Class
N, Class P, Class NR and Class X Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Paying Agent as custodian for
the Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests," "Related Components of Class X Certificates" and "Related Loan REMIC
Regular Interests": For each of the following Classes of Uncertificated
Lower-Tier Interests, the related Class of Certificates and the related
Component(s) of Class X Certificates and the related Class of Loan REMIC Regular
Interests, if applicable; for the following Components of the Class X
Certificates, the related Class of Uncertificated Lower-Tier Interests, the
related Class of Loan REMIC Regular Interests and the related Class of
Certificates set forth below and for the following Classes of Loan REMIC Regular
Interests, the related Class of Uncertificated Lower-Tier Interests, the related
Components of the Class X Certificates and the related Class of Certificates set
forth below:
Related
Components Related Loan
Related Uncertificated of Class X REMIC Regular
Related Certificate Lower-Tier Interest Certificates Interest
------------------- ------------------- ------------ --------
Class A-1 Certificate Class LA-1-1 XA-1-1
Uncertificated Interest
Class LA-1-2 XA-1-2
Uncertificated Interest
Class LA-1-3 XA-1-3
Uncertificated Interest
Class LA-1-4 XA-1-4
Uncertificated Interest
Class LA-1-5 XA-1-5
Uncertificated Interest
Class LA-1-6 XA-1-6
Uncertificated Interest
Class A-1A Certificate Class LA-1A-1 XA-1A-1
Uncertificated Interest
Class LA-1A-2 XA-1A-2
Uncertificated Interest
Class LA-1A-3 XA-1A-3
Uncertificated Interest
Class LA-1A-4 XA-1A-4
Uncertificated Interest
Class LA-1A-5 XA-1A-5
Uncertificated Interest
Class LA-1A-6 XA-1A-6
Uncertificated Interest
Class LA-1A-7 XA-1A-7
Uncertificated Interest
Class LA-1A-8 XA-1A-8
Uncertificated Interest
Class A-2 Certificate Class LA-2-1 XA-2-1
Uncertificated Interest
Class LA-2-2 XA-2-2
Uncertificated Interest
Class LA-2-3 XA-2-3
Uncertificated Interest
Class B Certificate Class LB Uncertificated XB
Interest
Class C Certificate Class LC Uncertificated XC
Interest
Class D Certificate Class LD Uncertificated XD
Interest
Class E Certificate Class LE Uncertificated XE
Interest
Class F Certificate Class LF-1 XF-1
Uncertificated Interest
Class LF-2 XF-2
Uncertificated Interest
Class G Certificate Class LG-1 XG-1
Uncertificated Interest
Class LG-2
Uncertificated Interest XG-2
Class H Certificate Class LH-1 XH-1
Uncertificated Interest
Class LH-2 XH-2
Uncertificated Interest
Class J Certificate Class LJ Uncertificated XJ
Interest
Class K Certificate Class LK Uncertificated XK
Interest
Class L Certificate Class LL-1 XL-1
Uncertificated Interest
Class LL-2 XL-2
Uncertificated Interest
Class M Certificate Class LM Uncertificated XM
Interest
Class N Certificate Class LN Uncertificated XN
Interest
Class P Certificate Class LP Uncertificated XP
Interest
Class NR Certificate Class LNR Uncertificated XNR
Interest
Class PS-1 Certificate Class LPS-1 N/A Class KPS-1
Uncertificated Interest Uncertificated
Interest
Class PS-2 Certificate Class LPS-2 N/A Class KPS-2
Uncertificated Interest Uncertificated
Interest
Class PS-3 Certificate Class LPS-3 N/A Class KPS-3
Uncertificated Interest Uncertificated
Interest
Class PS-4 Certificate Class LPS-4 N/A Class KPS-4
Uncertificated Interest Uncertificated
Interest
Class PS-5 Certificate Class LPS-5 N/A Class KPS-5
Uncertificated Interest Uncertificated
Interest
Class PS-6 Certificate Class LPS-6 N/A Class KPS-6
Uncertificated Interest Uncertificated
Interest
Class PS-7 Certificate Class LPS-7 N/A Class KPS-7
Uncertificated Interest Uncertificated
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Paying Agent or any REMIC administrator
appointed pursuant to Section 10.01.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "ARCap
Servicing, Inc., or the applicable successor Special Servicer, as Special
Servicer, for the benefit of U.S. Bank National Association, as trustee, in
trust for registered Holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1, REO
Account." Any such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer or the Trustee, as applicable, in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unpaid Special Servicing Fees and Servicing
Fees and any unreimbursed Advances, additional Trust Fund expenses, together
with any interest accrued and payable to the Servicer or the Trustee in respect
of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall
continue to be payable or reimbursable to the Servicer or the Trustee in respect
of an REO Loan. In addition, Workout-Delayed Reimbursement Amounts and
Nonrecoverable Advances with respect to such REO Loan, in each case, that were
paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced as a result of the first
proviso in the definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal Distribution Amount"
shall be deemed outstanding until recovered. Collections in respect of each REO
Loan (exclusive of the amounts to be applied to the payment of, or to be
reimbursed to the Servicer or the Special Servicer for the payment of the costs
of operating, managing, selling, leasing and maintaining the related REO
Property) shall be treated: first, as a recovery of Workout-Delayed
Reimbursement Amounts and Nonrecoverable Advances with respect to such REO Loan,
in each case, that were paid from collections on the Mortgage Loans and resulted
in principal distributed to the Certificateholders being reduced as a result of
the first proviso in the definition of "Principal Distribution Amount", "Loan
Group 1 Principal Distribution Amount" or "Loan Group 2 Principal Distribution
Amount"; second, as a recovery of accrued and unpaid interest on such REO Loan
at the related Mortgage Rate in effect from time to time to, but not including,
the Due Date in the Due Period of receipt (exclusive of any portion that
constitutes Excess Interest); third, as a recovery of principal of such REO Loan
to the extent of its entire unpaid principal balance; and fourth, in accordance
with the Servicing Standards of the Servicer, as a recovery of any other amounts
due and owing in respect of such REO Loan, including, without limitation, (i)
Penalty Charges, (ii) Yield Maintenance Charges and (iii) Excess Interest and
other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (subject to the related AB Intercreditor
Agreement with respect to a Mortgaged Property securing a Loan Pair) and the
Trustee (as holder of the Uncertificated Lower-Tier Interests) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee or the Paying Agent, any Vice President, Assistant Vice-President,
Assistant Secretary or corporate trust officer in the corporate trust department
of the Trustee or the Asset-Backed Securities Trust Services Group of the Paying
Agent, and with respect to any successor Trustee or the Paying Agent, any
officer or assistant officer in the corporate trust department of the Trustee or
the Paying Agent or any other officer of the Trustee or the Paying Agent
customarily performing functions similar to those performed by any of the above
designated officers to whom a particular matter is referred by the Trustee or
the Paying Agent because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Paying Agent, the Servicer and the Special Servicer, and specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Sav On-LA AB Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 111.
"Sav On-LA Companion Holder": The holder of the Sav On-LA Companion
Loan.
"Sav On-LA Companion Loan": That certain loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the Sav On-LA AB Mortgage Loan.
"Sav On-LA Intercreditor Agreement": That certain Intercreditor
Agreement Among Noteholders, dated as of April 24, 2003 and that certain
Intercreditor Agreement Supplement, dated as of August 13, 2003, each between
LaSalle Bank National Association, as Note A Holder, and Capital Lease Funding,
LLC as Note B Holder. The Sav On-LA Intercreditor Agreement relates to the Sav
On-LA AB Mortgage Loan.
"Sav On-LA Loan Pair": The Sav On-LA AB Mortgage Loan, together with
the Sav On-LA Companion Loan.
"Sav On-LA Mortgaged Property": The property subject to the lien of
the Mortgage securing the Sav On-LA Loan Pair.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Majority Mortgage Loans, the aggregate of the
principal portions of (a) all Monthly Payments (excluding Balloon Payments and
Excess Interest) due in respect of such Mortgage Loans during or, if and to the
extent not previously received or advanced pursuant to Section 4.03 in respect
of a preceding Distribution Date, prior to, the related Due Period, and all
Assumed Scheduled Payments for the related Due Period, in each case to the
extent either (i) paid by the Mortgagor as of the Determination Date (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable) (and not previously distributed to
Certificateholders) or (ii) advanced by the Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received on or prior to the related
Determination Date (or, with respect to each Mortgage Loan with a Due Date
occurring or a grace period ending after the related Determination Date, the
related Due Date or last day of such grace period, as applicable, to the extent
received by the Servicer as of the Business Day preceding the related P&I
Advance Date), and to the extent not included in clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Servicer": Xxxxx Fargo Bank, National Association, a national
banking association, and its successors in interest and assigns, or any
successor Servicer appointed as herein provided.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer, Special Servicer or the
Trustee, as applicable, in connection with the servicing and administering of
(a) a Mortgage Loan in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default is reasonably
foreseeable or (b) an REO Property, including (in the case of each of such
clause (a) and clause (b)), but not limited to, (x) the cost of (i) compliance
with the Servicer's obligations set forth in Section 3.03(c), (ii) the
preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(iv) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property and (y) any amount
specifically designated herein to be paid as a "Servicing Advance".
Notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Servicer or the Special Servicer, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses or costs and
expenses incurred by any such party in connection with its purchase of a
Mortgage Loan or REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion Loan
and REO Loan, the fee payable to the Servicer pursuant to the first paragraph of
Section 3.11(a).
"Servicing Fee Amount": With respect to the Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan, (a) the Stated Principal Balance of such Mortgage Loan as of the
end of the immediately preceding Due Period and (b) the difference between the
Servicing Fee Rate for such Mortgage Loan over the servicing fee rate (if any)
applicable to such Mortgage Loan as specified any Sub-Servicing Agreement
related to such Mortgage Loan. With respect to each Sub-Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal Balance of
such Mortgage Loan as of the end of the immediately preceding Due Period and (b)
the servicing fee rate specified in the related Sub-Servicing Agreement for such
Mortgage Loan.
"Servicing Fee Rate": A rate equal to the per annum rate set forth
on the Mortgage Loan Schedule under the heading "Servicing Fee Rate," in each
case computed on the basis of the Stated Principal Balance of the related
Mortgage Loan or Companion Loan.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan and (to the extent that the identified documents
existed on or before the Closing Date and the applicable reference to Servicing
File relates to any period after the Closing Date) delivered by the related
Mortgage Loan Seller to the Servicer: (i) a copy of any engineering reports or
property condition reports; (ii) other than with respect to a hotel property
(except with respect to tenanted commercial space within a hotel property),
copies of a rent roll and, for any office, retail, industrial or warehouse
property, a copy of all leases and estoppels and subordination and
non-disturbance agreements delivered to the Mortgage Loan Seller; (iii) copies
of related financial statements or operating statements; (iv) all legal
opinions, Mortgagor's Certificates and certificates of hazard insurance and/or
hazard insurance policies or other applicable insurance policies, if any,
delivered in connection with the closing of the Mortgage Loan; (v) a copy of the
Appraisal for the related Mortgaged Property(ies); (vi) the documents that were
delivered by or on behalf of the Mortgagor, which documents were required to be
delivered in connection with the closing of such Mortgage Loan and (vii) for any
Mortgage Loan that the related Mortgaged Property is leased to a single tenant,
a copy of the lease.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, (and in the case of the AB Mortgage Loan, the
Companion Loan) whose name and specimen signature appear on a list of servicing
officers furnished by the Servicer and the Special Servicer to the Paying Agent,
the Trustee and the Depositor on the Closing Date as such list may be amended
from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) with respect to a Mortgage Loan that is not a Balloon
Mortgage Loan, (a) a payment default shall have occurred at its
original maturity date, or (b) if the original maturity date of such
Mortgage Loan has been extended, a payment default shall have
occurred at such extended maturity date; or
(ii) with respect to each Balloon Mortgage Loan, (a) the
Balloon Payment is delinquent and the related Mortgagor has not
provided the Servicer on the related Maturity Date with a bona fide
written commitment for refinancing, reasonably satisfactory in form
and substance to the Servicer, which provides that such refinancing
will occur within 90 days, provided that the Mortgage Loan will
become a Specially Serviced Mortgage Loan immediately if the related
Mortgagor fails to pay any Assumed Scheduled Payment at any time
before the refinancing or, if such refinancing does not occur, the
related Mortgage Loan will become a Specially Serviced Mortgage Loan
at the end of such 90-day period (or for such shorter period beyond
the date on which that balloon payment was due within which the
refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent, unless, with respect to One Post
Office Square Mortgage Loan only, the One Post Office Square
Controlling Holder has cured such delinquency pursuant to the One
Post Office Square Intercreditor Agreement prior to such Monthly
Payment becoming more than 60 days delinquent; or
(iv) the Servicer makes a judgment, or receives from the
Special Servicer a written determination of the Special Servicer
that a payment default is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, upon such discharge, stay, lifting or
dismissal such Mortgage Loan shall no longer be a Specially Serviced
Mortgage Loan (and no Special Servicing Fees, Workout Fees or
Liquidation Fees will be payable with respect thereto and any such
fees actually paid shall be reimbursed by the Special Servicer); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Servicer has notice (other than
a failure by such Mortgagor to pay principal or interest) and which
the Servicer determines in its good faith reasonable judgment may
materially and adversely affects the interests of the
Certificateholders or the holders of the related Companion Loan, if
applicable, has occurred and remained unremedied for the applicable
grace period specified in such Mortgage Loan (or if no grace period
is specified for those defaults which are capable of cure, 60 days);
or
(ix) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property;
or
(x) if any Companion Loan becomes a Specially Serviced
Mortgage Loan, the corresponding AB Mortgage Loan or the One Post
Office Square Mortgage Loan and One Post Office Square B Note, as
applicable, shall also become a Specially Serviced Mortgage Loan. If
any AB Mortgage Loan or the One Post Office Square Mortgage Loan or
the One Post Office Square B Note, as applicable, becomes a
Specially Serviced Mortgage Loan, the corresponding Companion Loan
shall become a Specially Serviced Mortgage Loan. If any Mortgage
Loan in a Crossed Group becomes a Specially Serviced Mortgage Loan,
each other Mortgage Loan in such Crossed Group shall also become a
Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Special Servicer": ARCap Servicing, Inc., a Delaware corporation,
and its successors and assigns, or any successor Special Servicer appointed as
herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan in the same manner
as interest is calculated on the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan and
the One Post Office Square Whole Loan, if applicable, as of any date of
determination, an amount equal to (x) the Cut-off Date Principal Balance of such
Mortgage Loan, plus (y) any Mortgage Deferred Interest added to the principal
balance of such Mortgage Loan on or before the end of the immediately preceding
Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from
the Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iv) Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan on or before
such date of determination that were applied to reduce the
Unscheduled Principal Distribution Amount for the related
Distribution Date;
(v) the amount of any Nonrecoverable Advances incurred in
connection with the related Mortgage Loan reimbursed to any party
from the Certificate Account that were paid from principal
collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders for the related Distribution
Date being reduced as a result of the first proviso included in the
definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount";
(vi) the amount of any Workout-Delayed Reimbursement Amounts
with respect to the related Mortgage Loan, reimbursed to any party
from the Certificate Account that were paid from principal
collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders for any previous Distribution
Date being reduced as a result of the first proviso included in the
definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount", to the extent the amount of such
Workout-Delayed Reimbursement Amounts was determined to be a
Nonrecoverable Advance as of the date of such determination; and
(vii) any reduction in the outstanding principal balance of
such Mortgage Loan resulting from a Deficient Valuation that
occurred prior to the end of the Due Period for the most recent
Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such REO Loan, to the extent distributed to Certificateholders on
or before such date of determination;
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenues received with respect
to such REO Loan, to the extent distributed to Certificateholders on
or before such date of determination;
(iii) Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan or REO Loan on
or before such date of determination that were applied to reduce the
Unscheduled Principal Distribution Amount for the related
Distribution Date;
(iv) the amount of any Nonrecoverable Advance incurred in
connection with the related Mortgage Loan reimbursed to any party
from the Certificate Account that were paid from principal
collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders for the related Distribution
Date being reduced as a result of the first proviso included in the
definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount"; and
(v) the amount of any Workout-Delayed Reimbursement Amounts
with respect to the related Mortgage Loan, reimbursed to any party
from the Certificate Account that were paid from principal
collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders for any previous Distribution
Date being reduced as a result of the first proviso included in the
definition of "Principal Distribution Amount", "Loan Group 1
Principal Distribution Amount" or "Loan Group 2 Principal
Distribution Amount", to the extent the amount of such
Workout-Delayed Reimbursement Amounts was determined to be a
Nonrecoverable Advance as of the date of such determination.
A Mortgage Loan or a REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Sub-Servicer": Any Person with which the Servicer has entered into
a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P
or Class NR Certificate.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time) for one or more deleted Mortgage Loans, the Substitution
Shortfall Amount shall be determined as provided in the preceding sentence on
the basis of the aggregate Purchase Prices of the Mortgage Loan or Mortgage
Loans being replaced and the aggregate Stated Principal Balances of the related
Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan
REMIC due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-Off Date; (iii) any REO Property (to the
extent of the Trust Fund's interest therein); (iv) all revenues received in
respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) the Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases and any
security agreements (to the extent of the Trust Fund's interest therein); (vii)
any letters of credit, indemnities, guaranties or lease enhancement policies
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (viii) all assets deposited in the Servicing Accounts
(to the extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Account, the Loan REMIC Distribution Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve
Account and any REO Account (to the extent of the Trust Fund's interest in such
REO Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies under each Mortgage Loan Purchase
Agreement; (xi) the Loan REMIC Regular Interests and the Uncertificated
Lower-Tier Interests; and (xii) the proceeds of the foregoing (other than any
interest earned on deposits in the Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and any Reserve Accounts, to the extent such interest belongs to
the related Mortgagor).
"Trustee": U.S. Bank National Association, a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement. The Trustee Fee includes the
Paying Agent Fee.
"Trustee Fee Rate": A rate equal to 0.002% per annum computed on the
basis of the Stated Principal Balance of the related Mortgage Loan (and in the
same manner as interest is calculated on the related Mortgage Loan) as of the
preceding Distribution Date. The Trustee Fee Rate includes the Paying Agent Fee
Rate.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-1-6, Class
LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class
LA-1A-6, Class LA-1A-7, Class LA-1A-8, Class LA-2-1, Class LA-2-2, Class LA-2-3,
Class LB, Class LC, Class LD, Class LE, Class LF-1, Class LF-2, Class LG-1,
Class LG-2, Class LH-1, Class LH-2, Class LJ, Class LK, Class LL-1, Class LL-2,
Class LM, Class LN, Class LP, Class LNR, Class LPS-1, Class LPS-2, Class LPS-3,
Class LPS-4, Class LPS-5, Class LPS-6 and Class LPS-7 Uncertificated Interests.
"Uncertificated Class PS Lower-Tier Interests": Any of the Class
LPS-1, Class LPS-2, Class LPS-3, Class LPS-4, Class LPS-5, Class LPS-6 and Class
LPS-7 Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., ABN AMRO Incorporated
Citigroup, Nomura Securities International, Inc. and Credit Suisse First Boston
LLC.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person that made the
Advance hereunder, on the one hand, and the Trust Fund, on the other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (iii) and (iv) of
Section 3.05(a) but that has not been recovered from the Borrower or otherwise
from collections on or the proceeds of the Mortgage Loan or REO Property in
respect of which the Advance was made.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Majority Mortgage Loans, the aggregate of (a) all
Principal Prepayments received on such Mortgage Loans on or prior to the
Determination Date (or, with respect to each Mortgage Loan with a Due Date
occurring or a grace period ending after the related Determination Date, the
related Due Date or last day of such grace period, as applicable, to the extent
received by the Servicer as of the Business Day preceding the related P&I
Advance Date) and (b) the principal portions of all Liquidation Proceeds,
Insurance and Condemnation Proceeds (net of Special Servicing Fees, Liquidation
Fees, accrued interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan) and, if applicable, REO
Revenues received with respect to such Mortgage Loans and any REO Loans on or
prior to the related Determination Date, but in each case only to the extent
that such principal portion represents a recovery of principal for which no
advance was previously made pursuant to Section 4.03 in respect of a preceding
Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution Account) created and maintained by
the Paying Agent pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Paying Agent, in trust for the registered Holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 0000-XX0, Xxxxx-Xxxx Distribution Account." Any such
account or accounts shall be an Eligible Account (or a subaccount of the
Distribution Account).
"Upper-Tier REMIC": One of the three separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State thereof or the District of Columbia, including any
entity treated as a corporation or partnership for federal income tax purposes,
an estate whose income is subject to United States federal income tax regardless
of its source or 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 such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts), and (ii) in the case of
any other Class of Regular Certificates a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates, each determined as of
the Distribution Date immediately preceding such time. None of the Class PS
Certificates, Class R Certificates and the Class LR Certificates will be
entitled to any Voting Rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Majority Mortgage Loans as of the first day of the related Due Period,
weighted on the basis of their respective Stated Principal Balances as of the
first day of such Due Period (after giving effect to any payments received
during any applicable grace period).
"Withheld Amounts": As defined in Section 3.26(a).
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advance made with respect to such Mortgage Loan
on or before the date such Mortgage Loan becomes (or, but for the making of
three monthly payments under its modified terms, would then constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and unpaid)
interest on such Advances, to the extent that (i) such Advance is not reimbursed
to the Person who made such Advance on or before the date, if any, on which such
Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an obligation of the Mortgagor to pay such amount under the
terms of the modified loan documents. That any amount constitutes all or a
portion of any Workout-Delayed Reimbursement Amount shall not in any manner
limit the right of any Person hereunder to determine that such amount instead
constitutes a Nonrecoverable Advance.
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than those included in clause (i) or (ii) of
this definition) at maturity, received on each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Special Servicer,
the Paying Agent or the Trustee; provided, however, that for purposes of
calculating distributions on the Certificates, Principal Prepayments with
respect to any Mortgage Loan are deemed to be received on the date they
are applied in accordance with the Servicing Standards consistent with the
terms of the related Mortgage Note and Mortgage to reduce the outstanding
principal balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on the immediately preceding Distribution
Date pursuant to Section 4.04, (c) the addition of any Certificate
Deferred Interest allocated to such Class and added to such Certificate
Balance pursuant to Section 4.06(b) and (d) any recoveries on the related
Mortgage Loan of Nonrecoverable Advances (plus interest thereon) that were
previously reimbursed from principal collections on the Mortgage Loans
that resulted in a reduction of the Principal Distribution Amount, Loan
Group 1 Principal Distribution Amount or Loan Group 2 Principal
Distribution Amount, which recoveries are allocated to such Class and
added to the Certificate Balance pursuant to Section 4.04 (a).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee as trustee of the
trust, assign, sell, transfer and convey to the Trustee, in trust, without
recourse, for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests)
all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in, to and under (i) the
Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2, 3,
4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 11, 12, 14, 15, 16, 18 and 20 of each
of the Mortgage Loan Purchase Agreements, (iii) the AB Intercreditor Agreements
and (iv) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans (other than payments of principal and interest due
and payable on the Mortgage Loans on or before the Cut-off Date). The transfer
of the Mortgage Loans and the related rights and property accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the parties to
constitute a sale. In connection with the assignment to the Trustee of Sections
1, 2, 3, 4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 11, 12, 14, 15, 16, 18 and 20
of each of the Mortgage Loan Purchase Agreements, it is intended that the
Trustee get the benefit of Sections 11, 12 and 15 thereof in connection with any
exercise of rights under the assigned Sections, and the Depositor shall use its
best efforts to make available to the Trustee the benefits of Sections 11, 12
and 15 in connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers 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 thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, such Mortgage Loan Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed and
indemnifying the Trustee. If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi) and (xii) of the
definition of "Mortgage File," with evidence of filing or recording thereon,
solely because of a delay caused by the public filing or recording office where
such document or instrument has been delivered for filing or recordation, the
delivery requirements of the applicable Mortgage Loan Purchase Agreement and
this Section 2.01(b) shall be deemed to have been satisfied on a provisional
basis as of the Closing Date as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (certified by the applicable public filing or recording
office, the applicable title insurance company or the applicable Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
filing or recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate county recorder's office, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," to
be a true and complete copy of the original thereof submitted for recording),
with evidence of filing or recording thereon, is delivered to the Trustee or
such Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate public filing office or county recorder's office such original or
photocopy). If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii) and (xi) of the definition of
"Mortgage File," with evidence of filing or recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost or destroyed, the delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall be
deemed to have been satisfied as to such non-delivered document or instrument,
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of filing or recording thereon and
certified in the case of the documents and/or instruments referred to in clause
(ii) of the definition of "Mortgage File" by the appropriate county recorder's
office to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date. Neither the Trustee nor any Custodian shall in any way
be liable for any failure by any Mortgage Loan Seller or the Depositor to comply
with the delivery requirements of the related Mortgage Loan Purchase Agreement
and this Section 2.01(b). If, on the Closing Date as to any Mortgage Loan, the
applicable Mortgage Loan Seller cannot deliver in complete and recordable form
(or form suitable for filing, if applicable) any one of the assignments in favor
of the Trustee referred to in clause (iii), (v) (to the extent not already
assigned pursuant to clause (iii)), (vii) (to the extent not already assigned
pursuant to clause (iii)) or (xi) of the definition of "Mortgage File" solely
because of the unavailability of filing or recording information as to any
existing document or instrument and/or because such assignments are assignments
in blank and have not been completed in favor of the Trustee as specified in the
related clause(s) of the definition of "Mortgage File," such Mortgage Loan
Seller may provisionally satisfy the delivery requirements of the related
Mortgage Loan Purchase Agreement and this Section 2.01(b) by delivering with
respect to such Mortgage Loan on the Closing Date an omnibus assignment of such
Mortgage Loan substantially in the form of Exhibit H; provided that all required
original assignments with respect to such Mortgage Loan, in fully complete and
recordable form (or form suitable for filing, if applicable), are delivered to
the Trustee or its Custodian within 180 days of the Closing Date (or within such
longer period, not to exceed 18 months, as the Trustee in its discretion may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate public filing office or county recorder's office the applicable
filing or recording information as to the related document or instrument).
Notwithstanding anything herein to the contrary, with respect to letters of
credit, the applicable Mortgage Loan Seller shall deliver to the Servicer and
the Servicer shall hold the original letter(s) of credit in trust on behalf of
the Trustee in order to draw on such letter(s) of credit and the applicable
Mortgage Loan Seller shall be deemed to have satisfied the delivery requirements
of the related Mortgage Loan Purchase Agreement and this Section 2.01(b) by
delivering with respect to any letter(s) of credit a copy thereof to the Trustee
together with an officer's certificate of the applicable Mortgage Loan Seller
certifying that such document has been delivered to the Servicer. The applicable
Mortgage Loan Seller shall pay any costs of assignment or amendment of such
letter(s) of credit required in order for the Servicer to draw on such letter(s)
of credit.
(c) Pursuant to each Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller is required at its sole cost and expense, to itself, or to
engage a third party to, put each Assignment of Mortgage and each assignment of
each UCC Financing Statement ("Assignments" and, individually, "Assignment")
relating to the Mortgage Loans conveyed by it under the applicable Mortgage Loan
Purchase Agreement in proper form for filing or recording, as applicable, and to
submit such Assignments for filing or recording, as the case may be, in the
applicable public filing or recording office, and on the Closing Date, such
Mortgage Loan Seller may deliver one (1) omnibus assignment for all such
Mortgage Loans to the Trustee or its Custodian as provided in Section 2.01(b).
Except under the circumstances provided for in the last sentence of this
subsection (c), the related Mortgage Loan Seller will itself, or a third party
at such Mortgage Loan Seller's expense will, promptly (and in any event within
120 days of the later of the Closing Date and the Trustee's actual receipt of
the related documents and the necessary recording and filing information) 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 (iii) and (v)
of the definition of "Mortgage File" and each UCC assignment to the Trustee
referred to in clause (xi) of the definition of "Mortgage File." Each such
Assignment submitted for recording shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording
(or to the agent of the Mortgage Loan Seller who will then be responsible for
delivery of the same to the Trustee or its designee), and each such UCC
assignment submitted for recording or filing shall reflect that the file copy
thereof should be returned to the Trustee or its designee following recording or
filing (or agent of the Mortgage Loan Seller who will then be responsible for
delivery of the same to the Trustee or its designee). If any such document or
instrument is determined to be incomplete or not to meet the recording or filing
requirements of the jurisdiction in which it is to be recorded or filed, or is
lost by the public office or returned unrecorded or unfiled, as the case may be,
because of a defect therein, on or about 180 days after the Closing Date, the
related Mortgage Loan Seller or its designee shall prepare, at its own expense,
a substitute therefor or cure such defect, as the case may be, and thereafter
the Mortgage Loan Seller or its designee shall, at the expense of the related
Mortgage Loan Seller, upon receipt thereof cause the same to be duly recorded or
filed. If, by the first anniversary of the Closing Date, the Trustee has not
received confirmation of the recording or filing as the case may be, of any such
Assignment, it shall so advise the related Mortgage Loan Seller who may then
pursue such confirmation itself or request that the Trustee pursue such
confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each jurisdiction and of the records of the
offices of the applicable Secretary of State for confirmation that the
Assignment appears in such records and retain a copy of such confirmation in the
related Mortgage File. In the event that confirmation of the recording or filing
of an Assignment cannot be obtained, the Trustee or the related Mortgage Loan
Seller, as applicable, shall promptly inform the other and the Trustee shall
provide such Mortgage Loan Seller with a copy of the Assignment and request the
preparation of a new Assignment. The related Mortgage Loan Seller shall pay the
expenses for the preparation of replacement Assignments for any Assignments
which, having been properly submitted for filing or recording to the appropriate
governmental office by the Trustee, fail to appear of record and must be
resubmitted. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (iii) or (v) of the
definition of "Mortgage File," or to file any UCC-3 to the Trustee referred to
in clause (xi) of the definition of "Mortgage File," in those jurisdictions
where, in the written opinion of local counsel (which opinion shall be an
expense of the related Mortgage Loan Seller) acceptable to the Depositor and the
Trustee, such recordation and/or filing is not required to protect the Trustee's
interest in the related Mortgage Loans against sale, further assignment,
satisfaction or discharge by the related Mortgage Loan Seller, the Servicer, the
Special Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding draft documents,
privileged or internal communications or credit underwriting or due diligence
analyses or data) that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with copies of all documents in
each Mortgage File, shall be delivered by the Depositor or the applicable
Mortgage Loan Seller to the Servicer on or before the Closing Date and shall be
held by the Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders (and as holder of the Uncertificated Lower-Tier Interests)
and, if applicable, on behalf of the related Companion Holder. Such documents
and records shall be any documents and records that would otherwise be a part of
the Servicing File.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of the applicable Mortgage Loan Seller or any other name to be
transferred to the Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
(g) The Paying Agent hereby acknowledges the receipt by it of the
Closing Date Deposit Amount. The Paying Agent shall hold such Closing Date
Deposit Amount in the Distribution Account and shall include the Closing Date
Deposit Amount in the Available Distribution Amount for the initial Distribution
Date. The Closing Date Deposit Amount shall remain uninvested.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement (1)
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report, in good faith
and without notice of any adverse claim, of the applicable documents specified
in clause (i) of the definition of "Mortgage File" with respect to each Mortgage
Loan, of a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, and of all other assets included in the Trust Fund and (2)
declares (a) that it or a Custodian on its behalf holds and will hold such
documents and the other documents delivered or caused to be delivered by the
Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders and, with
respect to any original document in the Mortgage File for a Loan Pair, any
present or future Companion Holder (and as holder of the Uncertificated
Lower-Tier Interests).
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall, in the form attached as Exhibit Z, certify in
writing to each of the Rating Agencies, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder and the Mortgage Loan Sellers (and in
the case of the One Post Office Square Whole Loan, the One Post Office Square
Representative) that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full) and except as specifically
identified in any exception report annexed to such writing (the "Trustee
Exception Report"), (i) all documents specified in clauses (i) through (v), (ix)
through (xii) and (xvi) (or, with respect to clause (xvi), a copy of such letter
of credit and an officer's certificate as contemplated by the penultimate
sentence of Section 2.01(b) hereof), if any, of the definition of "Mortgage
File," as applicable, are in its possession, (ii) the foregoing documents
delivered or caused to be delivered by the Mortgage Loan Sellers have been
reviewed by it or by a Custodian on its behalf and appear regular on their face
and appear to be executed and to relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct. With respect to each Mortgage Loan listed on the Trustee Exception
Report, the Trustee shall specifically identify such Mortgage Loan together with
the nature of such exception (in the form reasonably acceptable to the Trustee
and the related Mortgage Loan Seller and separating items required to be in the
Mortgage File but never delivered from items which were delivered by the related
Mortgage Loan Seller but are out for recording and have not been returned by the
recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall, in the
form attached as Exhibit Z, certify in writing to each of the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder and the
applicable Mortgage Loan Seller that, as to each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any Mortgage Loan as to which a Liquidation
Event has occurred) or any Mortgage Loan specifically identified in any
exception report annexed to such writing (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the penultimate sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and relate to such Mortgage Loan, and (iii) based
on such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage Loan Schedule"
is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (v), (viii), (ix) and (xi) in the
definition of "Mortgage File," resulting solely from a delay in the return of
the related documents from the applicable recording office, which deficiency (i)
is continuing for (a) in the case of any Mortgage Loan that is not a Specially
Serviced Mortgage Loan, more than eighteen (18) months following the Closing
Date or (b) in the case of any Specially Serviced Mortgage Loan, thirty (30)
days following a Servicing Transfer Event, and (ii) impairs or prohibits in any
material way the Servicer's or Special Servicer's ability to act upon, or
enforce, any of the Trust Fund's rights and remedies under the related Mortgage
Loan, or Specially Serviced Mortgage Loan, as applicable, at the time the
Servicer or Special Servicer attempts to act upon, or enforce, any such right or
remedy, the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee (i) until
the date on which the Trustee determines that such document deficiency has been
cured, at which time the Trustee shall return such funds (or letter of credit)
to the related Mortgage Loan Seller, or (ii) if such document deficiency has not
been cured by the date which is eighteen (18) months following the Closing Date,
the related Mortgage Loan Seller shall be required to repurchase or substitute
for the related Mortgage Loan in accordance with the terms and conditions of
Section 2.03(b) or Section 3 of the related Mortgage Loan Purchase Agreement. In
the event of a repurchase or substitution, upon such date, the Trustee shall
deposit, or cause the Servicer to deposit, such funds, or shall draw upon the
letter of credit and deposit the proceeds of such draw, into the Certificate
Account to be applied to the Purchase Price (or the Substitution Shortfall
Amount, if applicable) in accordance with Section 2.03(b). All such funds
deposited with the Trustee shall be invested in Permitted Investments, at the
direction and for the benefit of the related Mortgage Loan Seller. Such funds
shall be treated as an "outside reserve fund" under the REMIC Provisions, which,
together with any reimbursement from the Loan REMIC or the Lower-Tier REMIC, is
beneficially owned by the related Mortgage Loan Seller for federal income tax
purposes, which Mortgage Loan Seller shall be taxable on all income or gain with
respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv) and (xv)
through (xxvi) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person or
(ii) to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Mortgage Loans delivered to it to
determine that the same are genuine, enforceable, sufficient to perfect and
maintain the perfection of a security interest or appropriate for the
represented purpose or that they are other than what they purport to be on their
face and, with respect to the documents specified in clause (ix), whether the
insurance is effective as of the date of the recordation, whether all
endorsements or riders issued are included in the file or if the policy has not
been issued whether any acceptable replacement document has been dated the date
of the related Mortgage Loan funding. Further, with respect to the UCC financing
statements referenced in the Mortgage File, absent actual knowledge to the
contrary or copies of UCC financing statements delivered to the Trustee as part
of the Mortgage File indicating otherwise, the Trustee may assume, for the
purposes of the filings and the certification to be delivered in accordance with
this Section 2.02 that the related Mortgage File should include one state level
UCC financing statement filing for each Mortgaged Property (or with respect to
any Mortgage Loan that has two or more Mortgagors, for each Mortgagor), or if
the Trustee has received notice that a particular UCC financing statement was
filed as a fixture filing, that the related Mortgage File should include only a
local UCC financing statement filing for each Mortgaged Property (or with
respect to any Mortgage Loan that has two or more Mortgagors, for each
Mortgagor). The assignments of the UCC's to be assigned to the Trust will be
delivered on the new national forms (or on such other form as may be acceptable
for filing in the applicable jurisdiction) and in recordable format and will be
filed in the jurisdiction(s) where such UCC financing statements were originally
filed, as indicated in the documents provided, and in accordance with then
current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b), not to have been delivered, (3) to contain
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or (4) to be defective on
its face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (and in the case of the One Post Office Square Whole
Loan, the One Post Office Square Representative) and the applicable Mortgage
Loan Seller (and in no event later than 90 days after the Closing Date and every
quarter thereafter, commencing with the quarter ending March 31, 2004 until
March 31, 2006, by providing a written report (the "Trustee Exception Report")
setting forth for each affected Mortgage Loan, with particularity, the nature of
such Defect (in a form reasonably acceptable to the Trustee and such Mortgage
Loan Seller and separating items required to be in the Mortgage File but never
delivered from items which were delivered by such Mortgage Loan Seller but are
out for recording and have not been returned by the recorder's office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
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 and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer,
the Paying Agent or the Trustee discovers (without implying any duty of such
person to make, or to attempt to make, such a discovery) or receives notice of a
Defect in any Mortgage File or a breach of any representation or warranty with
respect to a Mortgage Loan set forth in, or required to be made with respect to,
a Mortgage Loan by the applicable Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement (a "Breach"), which Defect or Breach, as the
case may be, materially and adversely affects the value of any Mortgage Loan,
the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein, such Certificateholder, the Servicer, the Special
Servicer, the Trustee, the Paying Agent or the Directing Certificateholder, as
applicable, (and with respect to the One Post Office Square Whole Loan, the One
Post Office Square Controlling Holder) shall give prompt written notice of such
Defect or Breach, as the case may be, to the Depositor, the Servicer, the
Special Servicer, the applicable Mortgage Loan Seller, the Paying Agent, the
Trustee, the Directing Certificateholder and, with respect to the One Post
Office Square Whole Loan, the One Post Office Square Controlling Holder, and
shall request that the applicable Mortgage Loan Seller, not later than the
earlier of 90 days from the applicable Mortgage Loan Seller's receipt of such
notice or the applicable Mortgage Loan Seller's discovery of such Defect or
Breach (the "Initial Cure Period") that materially and adversely affects the
value of any Mortgage Loan, the related Mortgaged Property or the interests of
the Trustee or any Certificateholder therein, (i) cure such Defect or Breach, as
the case may be, in all material respects, (ii) repurchase the affected Mortgage
Loan or REO Loan at the applicable Purchase Price and in conformity with the
applicable Mortgage Loan Purchase Agreement and this Agreement or (iii)
substitute a Qualified Substitute Mortgage Loan (other than with respect to the
One Post Office Square Mortgage Loan and the One Post Office Square B Note, for
which no substitution will be permitted) for such affected Mortgage Loan or REO
Loan (provided that in no event shall any such substitution occur later than the
second anniversary of the Closing Date) and pay the Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith and in conformity with the applicable Mortgage Loan Purchase Agreement
and this Agreement; provided, however, that if such Breach or Defect is capable
of being cured but is not cured within the Initial Cure Period, and the
applicable Mortgage Loan Seller has commenced and is diligently proceeding with
the cure of such Breach or Defect within the Initial Cure Period, the applicable
Mortgage Loan Seller shall have an additional 90 days commencing immediately
upon the expiration of the Initial Cure Period (such additional 90 day period,
the "Extended Cure Period") to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan or REO Loan or substitute a Qualified
Substitute Mortgage Loan (other than with respect to the One Post Office Square
Mortgage Loan and the One Post Office Square B Note, for which no substitution
will be permitted)) and provided, further, that with respect to such Extended
Cure Period the applicable Mortgage Loan Seller shall have delivered an
officer's certificate to the Rating Agencies, the Servicer, the Special
Servicer, the Trustee and the Directing Certificateholder, setting forth the
reason such Breach or Defect is not capable of being cured within the Initial
Cure Period and what actions the applicable Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the applicable Mortgage Loan
Seller anticipates that such Breach or Defect will be cured within the Extended
Cure Period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) that causes a defective Mortgage Loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interest of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price are to be deposited
by wire transfer in the Certificate Account. Monthly Payments due with respect
to each Qualified Substitute Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each
corresponding replaced Mortgage Loan (if any) and received by the Servicer or
the Special Servicer on behalf of the Trust after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
Servicer to the Mortgage Loan Seller effecting the related substitution promptly
following receipt. Notwithstanding anything contained in this Agreement or the
related Mortgage Loan Purchase Agreement, no delay in either the discovery of a
Defect or Breach or delay on the part of any party to this Agreement in
providing notice of such Defect or Breach shall relieve the Mortgage Loan Seller
of its obligation to repurchase if it is otherwise required to do so under the
related Mortgage Loan Purchase Agreement and/or this Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (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 that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage was sent for recordation; (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition of
Mortgage File; (d) the absence from the Mortgage File of any intervening
assignments required to create a complete chain of assignment to the Trustee on
behalf of the Trust, unless there is included in the Mortgage File a certified
copy of the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (e) the absence from the
Mortgage File of any required letter of credit; or (f) with respect to any
leasehold mortgage loan, the absence from the related Mortgage File of the
related Ground Lease; provided, however, that no Defect (except the Defects
previously described clauses (a) through (f)) shall be considered to materially
and adversely affect the value of the related Mortgage Loan, the related
Mortgaged Property or the interests of the Trustee or Certificateholders unless
the document with respect to which the Defect exists is required in connection
with an imminent enforcement of the Mortgagee's rights or remedies under the
related Mortgage Loan, defending any claim asserted by any Mortgagor or third
party with respect to the Mortgage Loan, establishing the validity or priority
of any lien on any collateral securing the Mortgage Loan or for any immediate
significant servicing obligation. Notwithstanding the foregoing, the delivery of
a commitment to issue a lender's title insurance policy, as provided in clause
(ix) of the definition of Mortgage File herein, in lieu of the delivery of the
actual policy of lender's title insurance, shall not be considered a Defect or
Breach with respect to any Mortgage File if such actual policy is delivered to
the Trustee or a Custodian on its behalf not later than the 90th day following
the Closing Date.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
the applicable Mortgage Loan Seller evidencing such repurchase or substitution,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by each of the Trustee, the Servicer and the Special
Servicer, and each document that constitutes a part of the Mortgage File that
was endorsed or assigned to the Trustee shall be endorsed or assigned, as the
case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 3 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of each
of the Mortgage Loan Purchase Agreements.
(e) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests), enforce the obligations of the applicable Mortgage Loan Seller under
the applicable Mortgage Loan Purchase Agreement. Such enforcement, including,
without limitation, the legal prosecution of claims, shall be carried out in
such form, to such extent and at such time as the Special Servicer would require
were it, in its individual capacity, the owner of the affected Mortgage Loan(s).
The Special Servicer shall be reimbursed for the reasonable costs of such
enforcement: first, from a specific recovery of costs, expenses or attorneys'
fees against the applicable Mortgage Loan Seller; second, pursuant to Section
3.05(a)(vii) herein out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement action it is determined that the amounts described in clauses
first and second are insufficient, then pursuant to Section 3.05(a)(viii) herein
out of general collections on the Mortgage Loans on deposit in the Certificate
Account.
(f) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in this Section, (ii) such Mortgage Loan
is a Crossed Loan, and (iii) the applicable Defect or Breach does not constitute
a Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Defect or
Breach, as the case may be, will be deemed to constitute a Defect or Breach, as
the case may be, as to any other Crossed Loan in the Crossed Group for purposes
of this paragraph, and the related Mortgage Loan Seller will be required to
repurchase or substitute for such other Crossed Loan(s) in the related Crossed
Group as provided in Section 2.03(b) unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that the
remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the applicable Mortgage Loan Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Breach or
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Mortgage Loans in
accordance with the related Mortgage Loan documents. All other terms of the
Mortgage Loans shall remain in full force and effect without any modification
thereof.
(g) Notwithstanding the foregoing, if the related Mortgage provides
for the partial release of one or more of the Crossed Loans, the Depositor may
cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, including the Crossed Loan Repurchase Criteria, (ii) in connection
with such partial release, the related Mortgage Loan Seller obtains an Opinion
of Counsel (at such Mortgage Loan Seller's expense) to the effect that the
contemplated action will not, with respect to the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMIC created hereunder, endanger such status or,
unless such party determines in its sole discretion to indemnify the Trust Fund
against any resultant tax, result in the imposition of any tax and (iii) in
connection with such partial release, the related Mortgage Loan Seller delivers
or causes to be delivered to the Custodian original modifications to the
Mortgage prepared and executed in connection with such partial release.
Section 2.04 Execution of Certificates; Creation of Loan REMIC
Regular Interests.
Concurrently with the assignment and in exchange for the One Post
Office Square B Note, (a) the Trustee agrees to hold the One Post Office Square
B Note included in the Loan REMIC, and (b) the Trustee acknowledges the issuance
of the Loan REMIC Regular Interests and the Loan REMIC Residual Interest to the
Depositor. The interests evidenced by the Loan REMIC Residual Interest, together
with the Loan REMIC Regular Interests, constitute the entire beneficial
ownership of the Loan REMIC. The rights of the Holders of the Class LR
Certificates, as owners of the Loan REMIC Residual Interest, and the rights of
the Lower-Tier REMIC (as holder of the Loan REMIC Regular Interests) to receive
distributions from the proceeds of the Loan REMIC in respect of the Loan REMIC
Residual Interest and the Loan REMIC Regular Interests shall be as set forth in
this Agreement.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Majority
Mortgage Loans and the Loan REMIC Regular Interests and, subject to Sections
2.01 and 2.02, the delivery to it, or a Custodian on its behalf, of the Mortgage
Files and a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, together with the assignment to it of all of the other
assets included in the Trust Fund. Concurrently with such assignment and
delivery, and in exchange therefor, the Trustee (i) acknowledges the issuance of
the Uncertificated Lower-Tier Interests by the Paying Agent to the Depositor and
(ii) acknowledges the authentication and delivery of the Class LR Certificates
(in respect of the residual interest in the Lower-Tier REMIC) by the Paying
Agent to or upon the order of the Depositor, in exchange for the Majority
Mortgage Loans (other than Excess Interest) and the Loan REMIC Regular
Interests, receipt of which is hereby acknowledged, and immediately thereafter,
the Trustee acknowledges that it has caused the Certificate Registrar to execute
and caused the Authenticating Agent to authenticate and to deliver to or upon
the order of the Depositor, in exchange for the Uncertificated Lower-Tier
Interests, the Regular Certificates (other than the portion of the Class NR
Certificates evidencing the portion of the Trust Fund consisting of the Excess
Interest and the Excess Interest Distribution Account), the Class PS
Certificates and the Class R Certificates, and the Depositor hereby acknowledges
the receipt by it or its designees, of such Certificates in authorized
Denominations evidencing the entire beneficial ownership of the Upper-Tier
REMIC.
Section 2.06 Grantor Trust Designations.
The Class NR Certificates, exclusive of the portion thereof
representing a "regular interest" in the Upper-Tier REMIC, are hereby designated
as undivided beneficial interests in the portion of the Trust Fund consisting of
Excess Interest and the Excess Interest Distribution Account, which portion
shall be treated as part of a grantor trust within the meaning of subpart E,
Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall service and
administer the Mortgage Loans and the Companion Loans it is obligated to service
pursuant to this Agreement on behalf of the Trust and in the best interests of
and for the benefit of the Certificateholders and, in the case of the Companion
Loans, the related Companion Holders and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests) (as
determined by the Servicer or the Special Servicer, as the case may be, in its
reasonable judgment) in accordance with applicable law, the terms of this
Agreement (and, with respect to each Loan Pair, the related AB Intercreditor
Agreement) and the terms of the respective Mortgage Loans, and, if applicable,
the related Companion Loan. With respect to each Loan Pair, in the event of a
conflict between this Agreement and the related AB Intercreditor Agreement, the
related AB Intercreditor Agreement shall control; provided, in no event shall
the Servicer or Special Servicer take any action or omit to take any action in
accordance with the terms of any AB Intercreditor Agreement that would cause
such servicer to violate the Servicing Standards. To the extent consistent with
the foregoing, the Servicer and the Special Servicer shall service the Mortgage
Loans in accordance with the higher of the following standards of care: (1) in
the same manner in which, and with the same care, skill, prudence and diligence
with which the Servicer or the Special Servicer, as the case may be, services
and administers similar mortgage loans for other third-party portfolios and (2)
the same care, skill, prudence and diligence with which the Servicer or the
Special Servicer, as the case may be, services and administers similar mortgage
loans owned by the Servicer or the Special Servicer, as the case may be, in
either case, with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans or Specially
Serviced Mortgage Loans and any related Companion Loan, as applicable, and the
best interests of the Trust and the Certificateholders (and in the case of AB
Mortgage Loans or the One Post Office Square Whole Loan, the holder of the
Regular Certificates, the holder of the Class PS Certificates or the related
Companion Holder, as applicable (all as a collective whole)), as determined by
the Servicer or the Special Servicer, as the case may be, in its reasonable
judgment, but without regard to: (i) any known relationship that the Servicer,
the Special Servicer or any Affiliate of the Servicer or the Special Servicer
may have with any Mortgagor or any Affiliate of such Mortgagor, any Mortgage
Loan Seller, or any other parties to this Agreement; (ii) the ownership of any
Certificate or other interest in any Mortgage Loan and any One Post Office
Square Companion Loan Securities by the Servicer, the Special Servicer or any
Affiliate of the Servicer or Special Servicer, as applicable; (iii) the
Servicer's obligation or the Special Servicer's option to make Advances or to
otherwise incur servicing expenses; (iv) the Servicer's or Special Servicer's,
as the case may be, right to receive compensation for its services and
reimbursement for its costs hereunder or with respect to any particular
transaction; (v) the ownership, servicing or management for others of any other
mortgage loans or mortgaged properties by the Servicer or Special Servicer; (vi)
any other debt the Servicer or the Special Servicer or any of their respective
Affiliates have extended to any Mortgagor or any of its known Affiliates and
(vii) any obligation of the Servicer or the Special Servicer, or any Affiliate
thereof, to pay indemnity with respect to, or repurchase any Mortgage Loan (the
foregoing, collectively, referred to as the "Servicing Standards"). Without
limiting the foregoing, subject to Section 3.21, the Special Servicer shall be
obligated to service and administer (i) any Mortgage Loans or Companion Loan as
to which a Servicing Transfer Event has occurred and is continuing and (ii) any
REO Properties; provided that the Servicer shall continue to receive payments
and make all calculations, and prepare, or cause to be prepared, all reports,
required hereunder with respect to the Specially Serviced Mortgage Loans, except
for the reports specified herein as prepared by the Special Servicer, as if no
Servicing Transfer Event had occurred and with respect to the REO Properties
(and the related REO Loans) as if no REO Acquisition had occurred, and to render
such services with respect to such Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; provided, further, however,
that the Servicer shall not be liable for failure to comply with such duties
insofar as such failure results solely from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations
hereunder. Each Mortgage Loan or Companion Loan that becomes a Specially
Serviced Mortgage Loan shall continue as such until satisfaction of the
conditions specified in Section 3.21(a). Without limiting the foregoing, subject
to Section 3.21, the Servicer shall be obligated to service and administer all
Mortgage Loans or Companion Loans which are not Specially Serviced Mortgage
Loans. The Special Servicer shall make the inspections, use its reasonable
efforts to collect the statements and forward to the Servicer to prepare the
reports in respect of the related Mortgaged Properties with respect to Specially
Serviced Mortgage Loans in accordance with Section 3.12. After notification to
the Servicer, the Special Servicer may contact the Mortgagor of any
Non-Specially Serviced Mortgage Loan if efforts by the Servicer to collect
required financial information have been unsuccessful or any other issues remain
unresolved. Such contact to be coordinated through and with the cooperation of
the Servicer. No provision herein contained shall be construed as an express or
implied guarantee by the Servicer or the Special Servicer of the collectability
or recoverability of payments on the Mortgage Loans or shall be construed to
impair or adversely affect any rights or benefits provided by this Agreement to
the Servicer or the Special Servicer (including with respect to Servicing Fees,
Special Servicing Fees or the right to be reimbursed for Advances). Any
provision in this Agreement for any Advance by the Servicer, the Special
Servicer or the Trustee is intended solely to provide liquidity for the benefit
of the Certificateholders and not as credit support or otherwise to impose on
any such Person the risk of loss with respect to one or more of the Mortgage
Loans. No provision hereof shall be construed to impose liability on the
Servicer or the Special Servicer for the reason that any recovery to the
Certificateholders in respect of a Mortgage Loan at any time after a
determination of present value recovery at any time is less than the amount
reflected in such determination.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, Companion
Loans, and applicable law, the Servicer and the Special Servicer each shall have
full power and authority, acting alone or, in the case of the Servicer, subject
to Section 3.22, through one or more Sub-Servicers, to do or cause to be done
any and all things in connection with such servicing and administration for
which it is responsible which it may deem necessary or desirable. Without
limiting the generality of the foregoing, each of the Servicer and the Special
Servicer, in its own name (or in the name of the Trustee and, if applicable, the
Companion Holder), is hereby authorized and empowered by the Trustee to execute
and deliver, on behalf of the Certificateholders and the Trustee or any of them,
with respect to each Mortgage Loan (and, with respect to a Companion Loan, the
Companion Holder) it is obligated to service under this Agreement: (i) any and
all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) subject to Section 3.20, any and all
modifications, waivers, amendments or consents to, under or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, pledge agreements and other
documents in connection with a defeasance, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Servicer or the Special
Servicer any powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents or Companion Loan documents (including the
related AB Intercreditor Agreement) to exercise its discretion with respect to
any action which requires a confirmation of the Rating Agencies that such action
will not result in the downgrade, withdrawal or qualification of the ratings of
any Class of Certificates, the Servicer shall require the costs of such written
confirmation to be borne by the related Mortgagor. To the extent the terms of
the related Mortgage Loan documents or Companion Loan documents require the
Mortgagor to bear the costs of any confirmation of the Rating Agencies that an
action will not result in the downgrade, withdrawal or qualification of the
ratings of any Class of Certificates, the Servicer shall not waive the
requirement that such costs and expenses be borne by the related Mortgagor. To
the extent that the terms of the related Mortgage Loan documents or Companion
Loan documents are silent as to who bears the costs of any confirmation of the
Rating Agencies that an action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Servicer shall
use reasonable efforts to have the mortgagor bear such costs and expenses. The
Servicer shall not be responsible for the payment of such costs and expenses out
of pocket.
(d) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Servicer shall, to the extent permitted by the related
Mortgage Loan documents or Companion Loan documents and consistent with the
Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days after the later of (i) the receipt thereof and
(ii) the Closing Date, the Servicer shall (x) notify each provider of a letter
of credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Servicer or the Special Servicer on behalf of
the Trustee for the benefit of the Certificateholders shall be the beneficiary
under each such letter of credit (y) notify each lessor under a Ground Lease for
each Mortgage Loan identified as subject to a leasehold interest on the Mortgage
Loan Schedule, that the Servicer or the Special Servicer shall service such
Mortgage Loan for the benefit of the Certificateholders and (z) make a written
request to "franchisor" under each franchisor comfort letter, if any, for each
such "franchisor" to issue a replacement comfort letter for the benefit of the
Trust Fund substantially similar to the comfort letter being replaced. If the
mortgage loan documents do not require the related Mortgagor to pay any costs
and expenses relating to any modifications to the related letter of credit, then
the applicable Mortgage Loan Seller shall pay such costs and expenses. If the
Mortgage Loan documents require the related Mortgagor to pay any costs and
expenses relating to any modifications to the related letter of credit, and such
Mortgagor fails to pay such costs and expenses after the Servicer has exercised
reasonable efforts to collect such costs and expenses from such Mortgagor, then
the Servicer shall give the applicable Mortgage Loan Seller notice of such
failure and the amount of costs and expenses, and such Mortgage Loan Seller
shall pay such costs and expenses. The costs and expenses of any modifications
to Ground Leases shall be paid by the related Mortgagor. Neither the Servicer
nor the Special Servicer shall have any liability for the failure of any
Mortgage Loan Seller to perform its obligations under the related Mortgage Loan
Purchase Agreement.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Servicer make a Servicing Advance with respect to any Companion Loan
to the extent the related AB Mortgage Loan or the One Post Office Square Whole
Loan, as applicable has been paid in full or is no longer included in the Trust
Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or the One
Post Office Square Loan and the One Post Office Square B Note, as applicable or
any related REO Property is part of the Trust Fund or for such longer period as
any amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related AB Intercreditor
Agreement remain due and owing; provided, however, that if the Maple Gardens
Companion Loan is included in a separate securitization trust, then the
servicing obligations with respect to such Companion Loan hereunder will be
limited to the extent provided in the related AB Intercreditor Agreement.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans and Companion Loans it is obligated to service
hereunder, and shall follow such collection procedures as are consistent with
this Agreement (including, without limitation, the Servicing Standards),
provided that with respect to the Mortgage Loans that have Anticipated Repayment
Dates, so long as the related Mortgagor is in compliance with each provision of
the related Mortgage Loan documents, the Servicer and the Special Servicer,
shall not take any enforcement action with respect to the failure of the related
Mortgagor to make any payment of Excess Interest, other than requests for
collection, until the maturity date of the related Mortgage Loan or the
outstanding principal balance of such Mortgage Loan has been paid in full;
provided that the Servicer or Special Servicer, as the case may be, may take
action to enforce the Trust Fund's right to apply excess cash flow to principal
in accordance with the terms of the Mortgage Loan documents. The Servicer may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan or Companion Loan it is obligated to service
hereunder three times during any period of twenty-four consecutive months with
respect to any Mortgage Loan or Companion Loan. Any additional waivers during
such 24-month period with respect to such Mortgage Loan may be made only after
the Servicer has given notice of a proposed waiver to the Directing
Certificateholder, and the Directing Certificateholder has consented to such
additional waiver (provided that if the Servicer fails to receive a response to
such notice from the Directing Certificateholder in writing within five (5) days
of giving such notice, then the Directing Certificateholder shall be deemed to
have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to each Loan Pair, the
related AB Intercreditor Agreement) and, in the absence of such express
provisions, shall be applied (after reimbursement first to the Trustee and
second to the Servicer or Special Servicer, as applicable, for any related
Servicing Advances and interest thereon as provided herein and unpaid servicing
compensation, Liquidation Expenses and related additional Trust Fund expenses):
first, in connection with Insurance and Condemnation Proceeds or Liquidation
Proceeds, as a recovery of a Workout-Delayed Reimbursement Amount or
Nonrecoverable Advances, in each case, that were paid from collections on the
Mortgage Loans and resulted in principal distributed to the Certificateholders
being reduced as a result of the first proviso in the definition of "Principal
Distribution Amount", "Loan Group 1 Principal Distribution Amount" or "Loan
Group 2 Principal Distribution Amount"; second, as a recovery of accrued and
unpaid interest on such Mortgage Loan or Companion Loan, as applicable, at the
related Mortgage Rate in effect from time to time to but not including the Due
Date in the Due Period of receipt; third, as a recovery of principal of such
Mortgage Loan then due and owing; fourth, in accordance with the Servicing
Standards, as a recovery of any other amounts due and owing on such Mortgage
Loan or Companion Loan, as applicable, including, without limitation, Penalty
Charges, Yield Maintenance Charges and Excess Interest; and fifth, as a recovery
of principal of such Mortgage Loan or Companion Loan, as applicable, to the
extent of its entire unpaid principal balance. Notwithstanding the preceding,
such provisions shall not be deemed to affect the priority of distributions of
payments. To the extent that such amounts are paid by a party other than a
Mortgagor, such amounts shall be deemed to have been paid in respect of a
purchase of all or part of the Mortgaged Property (in the case of Insurance and
Condemnation Proceeds or Liquidation Proceeds) and then paid by the Mortgagor
under the Mortgage Loan and Companion Loan, as applicable, in accordance with
the preceding sentence. Amounts collected on any REO Loan shall be deemed to be
applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
(and, with respect to each Loan Pair, the related Companion Loan and AB
Intercreditor Agreement) and applicable law, the Servicer shall apply all
Insurance and Condemnation Proceeds it receives on a day other than the Due Date
to amounts due and owing under the related Mortgage Loan as if such Insurance
and Condemnation Proceeds were received on the Due Date immediately succeeding
the month in which such Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest prior to the Determination Date for any Due Period, or receives
notice from the related Mortgagor that the Servicer or Special Servicer will be
receiving Excess Interest prior to the Determination Date for any Due Period,
the Servicer or Special Servicer, as applicable, will promptly notify the Paying
Agent. None of the Servicer, the Special Servicer or the Paying Agent shall be
responsible for any failure of the related Mortgagor to pay any such Excess
Interest. The preceding statements shall not, however, be construed to limit the
provisions of Section 3.02(a).
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the Mortgage Loan documents and Companion Loan documents. Amounts on deposit in
Servicing Accounts may only be invested in accordance with the terms of the
related Mortgage Loan documents or in Permitted Investments in accordance with
the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of items for which Escrow Payments were collected and
comparable items; (ii) reimburse the Trustee and then the Servicer or Special
Servicer for any Servicing Advances; (iii) refund to Mortgagors any sums as may
be determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan or Companion Loan and as described below or, if not so required,
to the Servicer; (v) after the occurrence of an event of default under the
related Mortgage Loan or Companion Loan, apply amounts to the indebtedness under
the applicable Mortgage Loan or Companion Loan; (vi) withdraw amounts deposited
in error; or (vii) clear and terminate the Servicing Account at the termination
of this Agreement in accordance with Section 9.01. As part of its servicing
duties, the Servicer shall pay or cause to be paid to the Mortgagors interest on
funds in Servicing Accounts, to the extent required by law or the terms of the
related Mortgage Loan or Companion Loan; provided, however, that in no event
shall the Servicer be required to remit to any Mortgagor any amounts in excess
of actual net investment income or funds in the related Servicing Account. If
allowed by the related Mortgage Loan documents and applicable law, the Servicer
may charge the related Mortgagor an administrative fee for maintenance of the
Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans (and each Companion Loan),
shall maintain accurate records with respect to each related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof. The Special Servicer, in the case
of REO Loans, and the Servicer, in the case of all other Mortgage Loans (and
each Companion Loan), shall use reasonable efforts consistent with the Servicing
Standards to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and shall effect payment thereof from the REO
Account or by the Servicer as Servicing Advances prior to the applicable penalty
or termination date and, in any event, prior to the institution of foreclosure
or similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items, employing for such purpose Escrow Payments (which
shall be so applied by the Servicer at the written direction of the Special
Servicer in the case of REO Loans) as allowed under the terms of the related
Mortgage Loan or Companion Loan. The Servicer or, with respect to any Mortgage
Loan that is a Specially Serviced Mortgage Loan, the Special Servicer, shall
service and administer any reserve accounts (including monitoring, maintaining
or changing the amounts of required escrows) in accordance with the terms of
such Mortgage Loan and the Servicing Standards. To the extent that a Mortgage
Loan (or a Companion Loan) does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of REO Loans,
and the Servicer, in the case of all other Mortgage Loans or Companion Loans,
shall use reasonable efforts consistent with the Servicing Standards to cause
the Mortgagor to comply with its obligation to make payments in respect of such
items at the time they first become due and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer or, with respect to Specially Serviced Mortgage Loans, the
Special Servicer (at its option) shall advance (which Servicing Advances by the
Special Servicer shall be reimbursed (subject to the other procedures set forth
below) by the Servicer monthly on each P&I Advance Date, provided that the
Servicer has not determined that such Servicing Advance constitutes a
Nonrecoverable Servicing Advance, which reimbursement shall constitute a
Servicing Advance by the Servicer in a like amount with respect to each related
Mortgaged Property (including any REO Property) all such funds as are necessary
for the purpose of effecting the payment of (i) real estate taxes, assessments
and other similar items that are or may become a lien thereon, (ii) ground rents
(if applicable) and (iii) premiums on Insurance Policies, in each instance if
and to the extent Escrow Payments collected from the related Mortgagor (or
related REO Revenues, if applicable) are insufficient to pay such item when due
and the related Mortgagor has failed to pay such item on a timely basis, and
provided, however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided, further, however, that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make such advance until the later of five Business Days after the
Servicer, the Special Servicer or the Trustee, as applicable, has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer and the Trustee no
less than five Business Days' written (facsimile) notice before the date on
which the Servicer is requested to make any Servicing Advance with respect to a
given Specially Serviced Mortgage Loan or REO Property; provided, however, that
only two Business Day's written (facsimile) notice shall be required in respect
of Servicing Advances required to be made on an emergency or urgent basis;
provided, further, that the Special Servicer shall not be entitled to make such
a request (other than for Servicing Advances required to be made on an urgent or
emergency basis) more frequently than once per calendar month (although such
request may relate to more than one Servicing Advance). The Servicer may pay the
aggregate amount of such Servicing Advances listed on a monthly request to the
Special Servicer, in which case the Special Servicer shall remit such Servicing
Advances to the ultimate payees. In addition, the Special Servicer shall provide
the Servicer and the Trustee with such information in its possession as the
Servicer or the Trustee, as applicable, may reasonably request to enable the
Servicer or the Trustee, as applicable, to determine whether a requested
Servicing Advance would constitute a Nonrecoverable Advance. Any request by the
Special Servicer that the Servicer make a Servicing Advance shall be deemed to
be a determination by the Special Servicer that such requested Servicing Advance
is not a Nonrecoverable Servicing Advance, and the Servicer shall be entitled to
conclusively rely on such determination, provided that such determination shall
not be binding upon the Servicer. On the first business day after the
Determination Date for each Distribution Date, the Special Servicer shall report
to the Servicer if the Special Servicer determines any Servicing Advance
previously made by the Special Servicer with respect to a Specially Serviced
Loan or REO Loan is a Nonrecoverable Servicing Advance. The Servicer shall be
entitled to conclusively rely on such a determination, provided that such
determination shall not be binding upon the Servicer. All such Advances shall be
reimbursable in the first instance from related collections from the Mortgagors
and further as provided in Section 3.05. No costs incurred by the Servicer or
the Special Servicer in effecting the payment of real estate taxes, assessments
and, if applicable, ground rents on or in respect of the Mortgaged Properties
shall, for purposes hereof, including, without limitation, the Paying Agent's
(calculation) calculating monthly distributions to Certificateholders, be added
to the unpaid principal balances of the related Mortgage Loans or Companion
Loans, notwithstanding that the terms of such Mortgage Loans or Companion Loans
so permit. The failure by the Servicer to make any required Servicing Advance as
and when due shall constitute an Event of Default if not cured within the cure
periods specified under Section 7.01(a)(iii) and, to the extent the Trustee has
actual knowledge of such failure, the Trustee shall make such Servicing Advance
pursuant to Section 7.05. Notwithstanding anything herein to the contrary, no
Servicing Advance shall be required hereunder if the Person otherwise required
to make such Servicing Advance determines that such Servicing Advance would, if
made, constitute a Nonrecoverable Servicing Advance. In addition, the Servicer
shall consider Unliquidated Advances in respect of prior Servicing Advances for
purposes of nonrecoverable determinations as if such Unliquidated Advances were
unreimbursed Servicing Advances.
Notwithstanding anything to the contrary contained in this Section
3.03(c), the Servicer may in its good faith judgment elect (but shall not be
required) to make a payment out of the Certificate Account to pay for certain
expenses set forth below notwithstanding that the Servicer has determined that a
Servicing Advance with respect to such expenditure would be a Nonrecoverable
Servicing Advance (unless, with respect to Specially Serviced Mortgage Loans or
REO Loans, the Special Servicer has notified the Servicer to not make such
expenditure), where making such expenditure would prevent (i) the related
Mortgaged Property from being uninsured or being sold at a tax sale or (ii) any
event that would cause a loss of the priority of the lien of the related
Mortgage, or the loss of any security for the related Mortgage Loan; provided
that in each instance, the Servicer determines in accordance with the Servicing
Standards (as evidenced by an Officer's Certificate delivered to the Trustee)
that making such expenditure is in the best interest of the Certificateholders
(and, if applicable the Companion Holders), all as a collective whole. The
Servicer may elect to obtain reimbursement of Nonrecoverable Servicing Advances
from the Trust Fund pursuant to the terms of 3.19(c). With respect to Specially
Serviced Mortgage Loans and REO Loans, the Special Servicer shall make the
foregoing determination as appropriate and the Servicer may rely on such
determinations provided that such determination shall not be binding upon the
Servicer.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Servicer and the Special Servicer, as the case may be, shall be entitled to
receive, out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the case
may be, for any outstanding Servicing Advance as soon as practically possible
after funds available for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall report any such
failure to the Special Servicer within a reasonable time after April 15, 2004.
Section 3.04 The Certificate Account, the Loan REMIC Distribution
Account, the Lower-Tier and Upper-Tier Distribution Accounts, the Companion
Distribution Account, the Gain-on-Sale Reserve Account and the Excess Interest
Distribution Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account in which the Servicer shall
deposit or cause to be deposited on a daily basis and in no event later than the
Business Day following receipt of available funds (in the case of payments by
Mortgagors or other collections on the Mortgage Loans or Companion Loans),
except as otherwise specifically provided herein, the following payments and
collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late payment charges and other Penalty Charges to the extent
required to offset interest on Advances and additional Trust Fund expenses
(other than Special Servicing Fees, Workout Fees or Liquidation Fees) as
required by Section 3.11;
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account (or, in respect of the One Post Office
Square B Note, the Loan REMIC Distribution Account) pursuant to Section
9.01); together with any amounts representing recoveries of Workout-
Delayed Reimbursement Amounts or Nonrecoverable Advances in respect of the
related Mortgage Loans;
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account; and
(vii) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
Notwithstanding the foregoing requirements, the Servicer need not
deposit into the Certificate Account any amount that the Servicer would be
authorized to withdraw immediately from such account in accordance with the
terms of Section 3.05 and shall be entitled to instead immediately pay such
amount directly to the Person(s) entitled thereto.
The foregoing requirements for deposit in the Certificate Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, defeasance fees, or amounts collected for
Mortgagor checks returned for insufficient funds need not be deposited by the
Servicer in the Certificate Account. If the Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account any provision herein
to the contrary notwithstanding. Assumption, extension and modification fees
actually received from Mortgagors on Specially Serviced Mortgage Loans shall be
promptly delivered to the Special Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iv)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Servicer
for deposit into the Certificate Account in accordance with the first two
paragraphs of this Section 3.04(a). Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the Servicer for deposit into the
Certificate Account pursuant to Section 3.16(c). With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse without recourse or warranty such check to the order of the
Servicer and shall promptly deliver any such check to the Servicer by overnight
courier.
The Servicer (as Companion Paying Agent) shall maintain, as part of
the Certificate Account, a subaccount for each Companion Loan on behalf of and
in trust for the benefit of the related Companion Holder, into which subaccount
the Servicer shall deposit or cause to be deposited all amounts described in the
first paragraph of this Section 3.04(a) to the extent allocable to the related
Companion Loan in accordance with this Agreement and the related AB
Intercreditor Agreement, and out of which subaccount the Servicer may make
withdrawals to the extent withdrawals of such funds are provided for in Section
3.05(a) of this Agreement or in the related AB Intercreditor Agreement. Each
such subaccount shall be an Eligible Account and shall be entitled "Xxxxx Fargo
Bank, National Association, as Servicer, on behalf of and in trust for the
"[related Companion Holder]."
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. As of the Closing
Date, the Certificate Account shall be located at the offices of the Servicer.
The Servicer shall give notice to the Trustee, the Paying Agent, the Special
Servicer and the Depositor of the new location of the Certificate Account prior
to or promptly after any change thereof.
(b) The Paying Agent, on behalf of the Trustee (as holder of the
Loan REMIC Regular Interests and Uncertificated Lower-Tier Interests), shall
establish and maintain the Loan REMIC Distribution Account, Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account and the Gain-on-Sale Reserve
Account in trust for the benefit of the Certificateholders (and the Trustee as
holder of the Loan REMIC Regular Interests and the Uncertificated Lower-Tier
Interests). The Companion Paying Agent shall establish and maintain an account
for distributions to each Companion Holder (the "Companion Distribution
Account") to be held for the benefit of the related Companion Holder. The
Servicer shall deliver to the Paying Agent each month on or before the P&I
Advance Date therein, (i) for deposit in the Loan REMIC Distribution Account,
the funds relating to the One Post Office Square B Note then on deposit in the
Certificate Account after giving effect to withdrawals of funds relating to the
One Post Office Square B Note pursuant to Section 3.05(a)(ii)-(xx) and (ii) for
deposit in the Lower-Tier Distribution Account, for the related Distribution
Date the funds relating to the Majority Mortgage Loans then on deposit in the
Certificate Account after giving effect to withdrawals of funds relating to the
Majority Mortgage Loans pursuant to Section 3.05(a)(ii)-(xx).
The Servicer shall deliver to the Companion Paying Agent each month
on the P&I Advance Date therein, for deposit in the Companion Distribution
Account, an aggregate amount of immediately available funds equal to the amount
available to be distributed to the related Companion Holder pursuant to the
related AB Intercreditor Agreement and Section 4.01(l).
The Loan REMIC Distribution Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account and the Interest Reserve may be
subaccounts of a single Eligible Account, which shall be maintained as a
segregated account separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in the
case of the One Post Office Square B Note) pursuant to the third preceding
paragraph, the Servicer shall, as and when required hereunder, deliver to the
Paying Agent for deposit in the Lower-Tier Distribution Account (or the Loan
REMIC Distribution Account in the case of the One Post Office Square B Note):
(i) any amounts required to be deposited by the Servicer pursuant to
Section 3.19 in connection with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in
the case of the One Post Office Square B Note) pursuant to any provision
of this Agreement.
If, as of the close of business (New York City time), on any P&I
Advance Date or on such other date as any amount referred to in the foregoing
clauses (i) through (v) are required to be delivered hereunder, the Servicer
shall not have delivered to the Paying Agent for deposit in the Loan REMIC
Distribution Account, the Lower-Tier Distribution Account and the Excess
Interest Distribution Account the amounts required to be deposited therein
pursuant to the provisions of this Agreement (including any P&I Advance pursuant
to Section 4.03(a) hereof), the Servicer shall pay the Paying Agent interest on
such late payment at the Prime Rate from the time such payment was required to
be made (without regard to any grace period) until (but not including) the date
such late payment is received by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Loan REMIC
Distribution Account or the Lower-Tier Distribution Account any and all amounts
received by the Paying Agent that are required by the terms of this Agreement to
be deposited therein.
Promptly on each Distribution Date, the Paying Agent shall (i)
withdraw from the Loan REMIC Distribution Account and deposit in the Lower-Tier
Distribution Account an aggregate amount of immediately available funds equal to
(A) the One Post Office Square B Note Available Distribution Amount and (B)
Yield Maintenance Charges for such Distribution Date in respect of the One Post
Office Square B Note distributable pursuant to Section 4.01(d) and (ii) withdraw
from the Lower-Tier Distribution Account and deposit in the Upper-Tier
Distribution Account an aggregate amount of immediately available funds equal to
the Lower-Tier PS Distribution Amount and the Lower-Tier Regular Distribution
Amount and the amount of any Yield Maintenance Charges for such Distribution
Date allocated in payment of the Uncertificated Lower-Tier Interests as
specified in Sections 4.01(b), respectively.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest
Reserve Account, the Excess Interest Distribution Account, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account and the Loan REMIC
Distribution Account shall remain uninvested. As of the Closing Date, the
Interest Reserve Account, the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account and the Loan REMIC Distribution Account shall be located at
the offices of the Paying Agent. The Paying Agent shall give notice to the
Trustee, the Servicer and the Depositor of the location of the Interest Reserve
Account, the Excess Interest Distribution Account, the Loan REMIC Distribution
Account, the Upper-Tier Distribution Account, the Lower-Tier Distribution
Account and, if established, the Gain-on-Sale Reserve Account, and of the new
location of the Distribution Accounts, the Interest Reserve Account and the
Gain-on-Sale Reserve Account prior to any change thereof.
(c) Prior to any Determination Date for the first Due Period during
which Excess Interest is received on any Mortgage Loan, and upon notification
from the Servicer or Special Servicer pursuant to Section 3.02(d), the Paying
Agent, on behalf of the Certificateholders, shall establish and maintain the
Excess Interest Distribution Account in the name of the Paying Agent in trust
for the benefit of the Class NR Certificateholders. The Excess Interest
Distribution Account shall be established and maintained as an Eligible Account
(or as a subaccount of an Eligible Account). Prior to the applicable
Distribution Date, the Servicer shall remit to the Paying Agent for deposit in
the Excess Interest Distribution Account an amount equal to the Excess Interest
received prior to the Determination Date for the applicable Due Period.
Following the distribution of Excess Interest to Class NR
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Paying Agent shall terminate the Excess Interest
Distribution Account.
(d) The Paying Agent shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as an
Eligible Account (or as a subaccount of an Eligible Account), separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Paying Agent for deposit into the Gain-on-Sale Reserve Account; provided,
that any Gain-on-Sale Proceeds with respect to the One Post Office Square B Note
shall be deemed to be distributed by the Loan REMIC in respect of the Loan REMIC
Residual Interest and then deposited in the Gain-on-Sale Reserve Account held by
the Lower-Tier REMIC to cover losses or shortfalls on the Majority Mortgage
Loans in accordance with Section 4.01(f).
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Distribution Accounts and the Companion Distribution Account.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) (A) no later than 1:00 p.m. New York City time on each P&I
Advance Date, to remit to the Paying Agent for deposit in the Loan REMIC
Distribution Account, the Lower-Tier Distribution Account and the Excess
Interest Distribution Account the amounts required to be remitted pursuant
to the first paragraph of Section 3.04(b) and Section 3.04(c) or that may
be applied to make P&I Advances pursuant to Section 4.03(a) and (B) to
remit to the Companion Paying Agent for deposit in each Companion
Distribution Account the amounts required to be so deposited pursuant to
the second paragraph of Section 3.04(b);
(ii) (A) to pay itself unpaid Servicing Fees in respect of each
Mortgage Loan and Companion Loan, Specially Serviced Mortgage Loan and REO
Loan, as applicable, the Servicer's rights to payment of Servicing Fees
pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Companion Loan, Specially Serviced Mortgage Loan or REO Loan, as
applicable, being limited to amounts received on or in respect of such
Mortgage Loan or Companion Loan (whether in the form of payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds or
Insurance and Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to pay the Special Servicer any unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of each
Specially Serviced Loan or REO Loan or Corrected Mortgage Loan, as
applicable, and any expense incurred by the Special Servicer in connection
with performing any inspections pursuant to Section 3.12(a), remaining
unpaid first, out of REO Revenues, Liquidation Proceeds and Insurance and
Condemnation Proceeds, and then out of general collections on the Mortgage
Loans and REO Properties;
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Mortgage Loans
and REO Loans with respect to which such P&I Advances were made; provided,
however, that if such P&I Advance becomes a Workout-Delayed Reimbursement
Amount, then such P&I Advance shall thereafter be reimbursed from the
portion of general collections and recoveries on or in respect of the
Mortgage Loans and REO Properties on deposit in the Certificate Account
from time to time that represent collections or recoveries of principal to
the extent provided in clause (v) below (to be allocated between the Loan
Groups as set forth in the last paragraph of the Section 3.05 (a));
(iv) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
Servicer's, the Special Servicer's or the Trustee's respective rights to
receive payment pursuant to this clause (iv) with respect to any Mortgage
Loan, Companion Loan or REO Property being limited to, as applicable,
related payments, Liquidation Proceeds, Insurance and Condemnation
Proceeds and REO Revenues (provided that, in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement); provided, however, that if such Servicing
Advance becomes a Workout-Delayed Reimbursement Amount, then such
Servicing Advance shall thereafter be reimbursed from the portion of
general collections and recoveries on or in respect of the Mortgage Loans
and REO Properties on deposit in the Certificate Account from time to time
that represent collections or recoveries of principal to the extent
provided in clause (v) below (to be allocated between the Loan Groups as
set forth in the last paragraph of the Section 3.05 (a));
(v) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order) (A) with respect to Nonrecoverable Advances
first, out of REO Revenues, Liquidation Proceeds and Insurance and
Condemnation Proceeds received on the related Mortgage Loan and the
Companion Loan, if applicable, then, out of the principal portion of
general collections on the Mortgage Loans and REO Properties (to be
allocated between the Loan Groups as set forth in the last paragraph of
the Section 3.05 (a)), then, to the extent the principal portion of
general collections is insufficient and with respect to such excess only,
subject to any exercise of the sole option to defer reimbursement thereof
pursuant to Section 3.19(c), out of other collections on the Mortgage
Loans and REO Properties and, (B) with respect to the Workout-Delayed
Reimbursement Amounts, out of the principal portion of the general
collections on the Mortgage Loans and REO Properties (to be allocated
between the Loan Groups as set forth in the last paragraph of the Section
3.05 (a)), net of such amounts being reimbursed pursuant to (A) above
(provided that, in case of such reimbursement relating to an AB Mortgage
Loan, such reimbursements shall be made first, from amounts collected on
the related Companion Loan and then from the related Mortgage Loan in
accordance with the terms of the related Intercreditor Agreement) or to
pay itself, with respect to any Mortgage Loan and the Companion Loans, if
applicable, or REO Property any related earned Servicing Fee that remained
unpaid in accordance with clause (ii) above following a Final Recovery
Determination made with respect to such Mortgage Loan or REO Property and
the deposit into the Certificate Account of all amounts received in
connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order), for (a) any xxxxxxxxxxxx X&X Advance
(including any such P&I Advance that constitutes a Workout-Delayed
Reimbursement Amount) pursuant to clause (iii) above, to pay itself or the
Trustee, as applicable, any interest accrued and payable thereon in
accordance with Sections 4.03(d) and 3.11(c), (b) any unreimbursed
Servicing Advances (including any such Servicing Advance that constitutes
a Workout-Delayed Reimbursement Amount) pursuant to clause (iv) above, to
pay itself, the Special Servicer or the Trustee, as the case may be, any
interest accrued and payable thereon in accordance with Sections 3.03(d)
and 3.11(c) or (c) any Nonrecoverable Advances pursuant to clause (v)
above, to pay itself, the Special Servicer or the Trustee, as the case may
be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
the case may be, for any unreimbursed expenses reasonably incurred by such
Person in respect of any Breach or Defect giving rise to a repurchase or
substitution obligation of the applicable Mortgage Loan Seller under
Section 3 of the applicable Mortgage Loan Purchase Agreement, including,
without limitation, any expenses arising out of the enforcement of the
repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan or Companion Loan being limited to that portion of the Purchase Price
or Substitution Shortfall Amount paid with respect to such Mortgage Loan
or Companion Loan that represents such expense in accordance with clause
(iv) of the definition of Purchase Price (provided that, in case of such
reimbursement relating to an AB Mortgage Loan, such reimbursements shall
be made first, from amounts collected on the related Companion Loan and
then from the related Mortgage Loan in accordance with the terms of the
related Intercreditor Agreement);
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise (provided that, in case of such reimbursement
relating to an AB Mortgage Loan, such reimbursements shall be made first,
from amounts collected on the related Companion Loan and then from the
related Mortgage Loan in accordance with the terms of the related
Intercreditor Agreement);
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties (provided that, in
case of such reimbursement relating to an AB Mortgage Loan, such
reimbursements shall be made first, from amounts collected on the related
Companion Loan and then from the related Mortgage Loan in accordance with
the terms of the related Intercreditor Agreement);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges (other than Penalty
Charges collected while the related Mortgage Loan is a Specially Serviced
Mortgage Loan), but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Mortgage Loan have been paid and such Penalty
Charges are not needed to pay interest on Advances or costs and expenses
incurred by the Trust Fund (other than Special Servicing Fees) in
accordance with Section 3.11(c); and (b) to pay the Special Servicer, as
additional servicing compensation in accordance with the second paragraph
of Section 3.11(b), Penalty Charges collected on Specially Serviced
Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) or 6.03(b);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of their
assets or transactions, together with all incidental costs and expenses,
to the extent that none of the Servicer, the Special Servicer, the Paying
Agent or the Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Paying Agent out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the Mortgage Loan
Sellers, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase; or, in the case of the substitution
for a Mortgage Loan by a Mortgage Loan Seller pursuant to Section 2.03(b),
to pay such Mortgage Loan Seller with respect to the replaced Mortgage
Loan all amounts received thereon subsequent to the date of substitution
in accordance with the last sentence of the first paragraph of Section
2.03(b);
(xvii) to remit to the Paying Agent for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.26;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01;
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b); and
(xx) to pay for any expenditures to be borne by the Trust Fund
pursuant to the second paragraph of Section 3.03(c).
The Servicer shall pay to the Special Servicer or the Paying Agent
from the Certificate Account amounts permitted to be paid to it therefrom
monthly upon receipt of a certificate of a responsible officer of the Special
Servicer or the Paying Agent describing the item and amount to which the Special
Servicer or the Paying Agent is entitled. The Servicer may rely conclusively on
any such certificate and shall have no duty to re-calculate the amounts stated
therein. The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account.
To the extent a Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to a Mortgage Loan is required to be
reimbursed from the principal portion of the general collections on the Mortgage
Loans pursuant to clauses (iii), (iv) or (v) of this Section 3.05(a), such
reimbursement shall be made first, from the principal collection available on
the Mortgage Loans included in the same Loan Group as such Mortgage Loan and if
the principal collections in such Loan Group are not sufficient to make such
reimbursement in full, then from the principal collections available in the
other Loan Group (after giving effect to any reimbursement of Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts related to such other Loan
Group).
(b) The Paying Agent on behalf of the Trustee, may, from time to
time, make withdrawals from the Loan REMIC Distribution Account for any of the
following purposes:
(i) to make deposits to the Lower-Tier Distribution Account and
distributions in respect of the Class LR Certificates and to make deposits
in respect of Yield Maintenance Charges in respect of the One Post Office
Square B Note to the Lower-Tier Distribution Account pursuant to Section
4.01(d);
(ii) [RESERVED];
(iii) to pay to the Trustee and the Paying Agent or any of their
respective directors, officers, employees and agents, as the case may be,
any amounts payable or reimbursable to any such Person with respect to the
One Post Office Square B Note pursuant to Section 8.05(b);
(iv) to pay the Trustee and the Paying Agent the Trustee Fee and the
Paying Agent Fee with respect to the One Post Office Square B Note as
contemplated by Section 8.05(a) hereof;
(v) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 9.02(a)(i) or 10.01(h), or (C) as contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee or the Paying Agent, with respect to the One Post
Office Square B Note, which amendment is in furtherance of the rights and
interests of Certificateholders to the extent not paid pursuant to Section
11.01(a);
(vi) to pay any and all federal, state and local taxes imposed on
the Loan REMIC or on the assets or transactions of such REMIC, together
with all incidental costs and expenses except to the extent the Paying
Agent is liable therefore pursuant to Section 10.01(g); provided that, to
the extent any of the REMIC Administrator, the Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(g), such payment
shall not prejudice the rights of the Paying Agent on behalf of the Loan
REMIC to collect such amounts;
(vii) to pay the REMIC Administrator, with respect to the One Post
Office Square B Note, any amounts reimbursable to it pursuant to Section
10.01(e);
(viii) to pay to the Servicer any amounts deposited by the Servicer
in the Loan REMIC Distribution Account not required to be deposited
therein; and
(ix) to clear and terminate the Loan REMIC Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Paying Agent on behalf of the Trustee may, from time to
time, make withdrawals from the Lower-Tier Distribution Account for any of the
following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount pursuant
to Section 4.01(b) and the amount of any Yield Maintenance Charges
distributable pursuant to Section 4.01(d) in the Upper-Tier Distribution
Account and to make distributions on the Class LR Certificates pursuant to
Section 4.01(b);
(ii) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee, and the Paying Agent or any of their
directors, officers, employees and agents, as the case may be, any amounts
payable or reimbursable to any such Person, with respect to the Majority
Mortgage Loans, pursuant to Section 8.05(b) (and, to the extent such
amounts are not available from the Loan REMIC Distribution Account, the
One Post Office Square B Note);
(v) to pay the Trustee and the Paying Agent the Trustee Fee and the
Paying Agent Fee as contemplated by Section 8.05(a) hereof with respect to
the Majority Mortgage Loans (and, to the extent such amounts are not
available from the Loan REMIC Distribution Account, the One Post Office
Square B Note);
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee or the Paying Agent (A) as provided in clause (v) of the
definition of "Disqualified Organization," (B) as contemplated by Section
3.20(d), 8.02(ii) and 10.01(f), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement requested
by the Trustee or the Paying Agent, with respect to the Majority Mortgage
Loans, which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 11.01(g);
(vii) to pay any and all federal, state and local taxes imposed on
either the Lower-Tier REMIC or Upper-Tier REMIC or on the assets or
transactions of any such REMIC, together with all incidental costs and
expenses, to the extent none of the Trustee, the Paying Agent, the REMIC
Administrator, the Servicer or the Special Servicer is liable therefor
pursuant to Section 10.01(i);
(viii) to pay the REMIC Administrator, with respect to the Majority
Mortgage Loans (and, to the extent such amounts are not available from the
Loan REMIC Distribution Account, the One Post Office Square B Note), any
amounts reimbursable to it pursuant to Section 10.01(e);
(ix) to pay to the Servicer any amounts deposited by the Servicer in
the Distribution Account not required to be deposited therein; and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(d) The Paying Agent shall, on any Distribution Date, make
withdrawals from the Excess Interest Distribution Account to the extent required
to make the distributions of Excess Interest required by Section 4.01(j).
(e) The Paying Agent on behalf of the Trustee may make withdrawals
from the Upper-Tier Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable;
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(f) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account, the
Loan REMIC Distribution Account and the Lower-Tier Distribution Account are not
sufficient to pay the full amount of the Servicing Fee listed in Section
3.05(a)(ii) and the Trustee Fee and the Paying Agent Fee listed in Section
3.05(b)(iv) and 3.05(c)(v), then the Trustee Fee and the Paying Agent Fee shall
be paid in full prior to the payment of any Servicing Fees payable under Section
3.05(a)(ii) and in the event that amounts on deposit in the Certificate Account,
the Loan REMIC Distribution Account and the Lower Tier Distribution Account are
not sufficient to pay the full amount of such Trustee Fee and such Paying Agent
Fee, the Trustee and the Paying Agent shall be paid pro rata based on the amount
of such fees and (ii) if amounts on deposit in the Certificate Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid
first to the Trustee and second to the Servicer.
(g) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions on
each Distribution Date pursuant to Section 4.01(l).
(h) Except as otherwise provided in this Section 3.05, any amounts
permitted to be withdrawn pursuant to this Section 3.05 which do not related to
a specific Mortgage Loan, but rather are payable from general collections on the
Mortgage Loans and REO Properties, shall be allocated among the Mortgage Loans
pro rata based on the Stated Principal Balance of the related Mortgage Loans.
Section 3.06 Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.
(a) The Servicer may direct any depository institution maintaining
the Certificate Account or any Servicing Account (for purposes of this Section
3.06, an "Investment Account"), the Special Servicer may direct any depository
institution maintaining the REO Account (for purposes of this Section 3.06, an
"Investment Account") (also for purposes of this Section 3.06, an "Investment
Account"), to invest or if it is such depository institution, may itself invest,
the funds held therein, only in one or more Permitted Investments bearing
interest or sold at a discount, and maturing, unless payable on demand, (i) no
later than the Business Day immediately preceding the next succeeding date on
which such funds are required to be withdrawn from such account pursuant to this
Agreement, if a Person other than the depository institution maintaining such
account is the obligor thereon and (ii) no later than the date on which such
funds are required to be withdrawn from such account pursuant to this Agreement,
if the depository institution maintaining such account is the obligor thereon.
All such Permitted Investments shall be held to maturity, unless payable on
demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such). The Servicer (in the case of the
Certificate Account or any Servicing Account maintained by or for the Servicer)
or the Special Servicer (in the case of the REO Account or any Servicing Account
maintained by or for the Special Servicer), on behalf of the Trustee, shall
maintain continuous physical possession of any Permitted Investment of amounts
in the Certificate Account, the Servicing Accounts or REO Account, as
applicable, that is either (i) a "certificated security," as such term is
defined in the UCC (such that the Trustee shall have control pursuant to Section
8-106 of the UCC) or (ii) other property in which a secured party may perfect
its security interest by physical possession under the UCC or any other
applicable law. In the case of any Permitted Investment held in the form of a
"security entitlement" (within the meaning of Section 8-102(a)(17) of the UCC),
the Servicer or the Special Servicer, as applicable, shall take or cause to be
taken such action as the Trustee deems reasonably necessary to cause the Trustee
to have control over such security entitlement. In the event amounts on deposit
in an Investment Account are at any time invested in a Permitted Investment
payable on demand, the Servicer (in the case of the Certificate Account or any
Servicing Account maintained by or for the Servicer), the Special Servicer (in
the case of the REO Account or any Servicing Account maintained by or for the
Special Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account or any Servicing Account maintained by or for the
Servicer, to the extent of the Net Investment Earnings, if any, with respect to
such account for the period from the prior P&I Advance Date to the P&I Advance
Date related to such Distribution Date, shall be for the sole and exclusive
benefit of the Servicer to the extent not required to be paid to the related
Mortgagor and shall be subject to its withdrawal, or withdrawal at its
direction, in accordance with Sections 3.03 or Section 3.05(a), as the case may
be. Interest and investment income realized on funds deposited in the REO
Account or any Servicing Account maintained by or for the Special Servicer, to
the extent of the Net Investment Earnings, if any, with respect to such account
for each period from any Distribution Date to the immediately succeeding P&I
Advance Date, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment directed to be made by the Servicer or Special Servicer, as
applicable, and on deposit in any of the Certificate Account, the Servicing
Account or the REO Account, the Servicer (in the case of the Certificate Account
or any Servicing Account maintained by or for the Servicer) and the Special
Servicer (in the case of the REO Account or any Servicing Account maintained by
or for the Special Servicer) shall deposit therein, no later than the P&I
Advance Date, without right of reimbursement, the amount of Net Investment Loss,
if any, with respect to such account for the period from the prior P&I Advance
Date to the P&I Advance Date related to such Distribution Date, provided that
neither the Servicer nor the Special Servicer shall be required to deposit any
loss on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Servicer may and, upon the request of Holders of Certificates
entitled to a majority of the Voting Rights allocated to any Class shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer or the Special Servicer, as applicable, shall use
its efforts consistent with the Servicing Standards to cause the Mortgagor to
maintain, to the extent required by the terms of the related Mortgage Note, or
if the Mortgagor does not so maintain, shall itself maintain, for each Mortgage
Loan all insurance coverage as is required under the related Mortgage, except to
the extent that the failure of the related Mortgagor to do so is an Acceptable
Insurance Default; provided, however, that if any Mortgage permits the holder
thereof to dictate to the Mortgagor the insurance coverage to be maintained on
such Mortgaged Property, the Servicer or the Special Servicer, as applicable,
shall impose such insurance requirements as are consistent with the Servicing
Standards, provided that, with respect to the immediately preceding proviso, the
Servicer or the Special Servicer, as applicable, will be obligated to maintain
insurance against property damage resulting from terrorist or similar acts
unless the Mortgagor's failure is an Acceptable Insurance Default. Subject to
Section 3.17(a), the Special Servicer shall maintain for each REO Property no
less insurance coverage than was previously required of the Mortgagor under the
related Mortgage Loan. All Insurance Policies maintained by the Servicer or the
Special Servicer shall (i) contain a "standard" mortgagee clause, with loss
payable to the Servicer on behalf of the Trustee (in the case of insurance
maintained in respect of Mortgage Loans other than REO Properties) or to the
Special Servicer on behalf of the Trustee (in the case of insurance maintained
in respect of REO Properties), (ii) be in the name of the Trustee (in the case
of insurance maintained in respect of REO Properties), (iii) include coverage in
an amount not less than the lesser of (x) the full replacement cost of the
improvements securing Mortgaged Property or the REO Property, as applicable, or
(y) the outstanding principal balance owing on the related Mortgage Loan or REO
Loan, as applicable, and in any event, the amount necessary to avoid the
operation of any co-insurance provisions, (iv) include a replacement cost
endorsement providing no deduction for depreciation (unless such endorsement is
not permitted under the related Mortgage Loan documents), (v) be noncancellable
without 30 days prior written notice to the insured party (except in the case of
nonpayment, in which case such policy shall not be cancelled without 10 days
prior notice) and (vi) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies. Any amounts collected by the
Servicer or the Special Servicer under any such Insurance Policies (other than
amounts to be applied to the restoration or repair of the related Mortgaged
Property or REO Property or amounts to be released to the related Mortgagor, in
each case in accordance with the Servicing Standards and the provisions of the
related Mortgage Loan) shall be deposited in the Certificate Account, subject to
withdrawal pursuant to Section 3.05(a). Any costs incurred by the Servicer in
maintaining any such Insurance Policies in respect of Mortgage Loans (other than
REO Properties) (i) if the Mortgagor defaults on its obligation to do so, shall
be advanced by the Servicer as a Servicing Advance and will be charged to the
related Mortgagor and (ii) shall not, for purposes of calculating monthly
distributions to Certificateholders, be added to the unpaid principal balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
or Companion Loan so permit. Any cost incurred by the Special Servicer in
maintaining any such Insurance Policies with respect to REO Properties shall be
an expense of the Trust payable out of the related REO Account pursuant to
Section 3.16(c) or, if the amount on deposit therein is insufficient therefor,
advanced by the Servicer as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
which either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Servicer will
be required to (A) actively monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any borrower fails to purchase the
insurance requested to be purchased by the Servicer pursuant to clause (B)
above. If the Special Servicer determines in accordance with the Servicing
Standards that such failure is not an Acceptable Insurance Default, the Special
Servicer shall notify the Servicer and the Servicer shall cause such insurance
to be maintained. Furthermore, the Special Servicer shall inform the Rating
Agencies as to such conclusions for those Mortgage Loans that (i) have one of
the ten (10) highest outstanding Stated Principal Balances of all of the
Mortgage Loans then included in the Trust or (ii) comprise more than 5% of the
outstanding stated principal balance of the Mortgage Loans then included in the
Trust. During the period that the Special Servicer is evaluating the
availability of such insurance, the Servicer will not be liable for any loss
related to its failure to require the Mortgagor to maintain such insurance and
will not be in default of its obligations as a result of such failure and the
Servicer will not itself maintain such insurance or cause such insurance to be
maintained.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans, including the One Post
Office Square Whole Loan, or REO Properties, as the case may be, required to be
serviced and administered hereunder, then, to the extent such Insurance Policy
provides protection equivalent to the individual policies otherwise required,
the Servicer or the Special Servicer shall conclusively be deemed to have
satisfied its obligation to cause fire and hazard insurance to be maintained on
the related Mortgaged Properties or REO Properties. Such Insurance Policy may
contain a deductible clause, in which case the Servicer or the Special Servicer
shall, if there shall not have been maintained on the related Mortgaged Property
or REO Property a fire and hazard Insurance Policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
which would have been covered by such Insurance Policy, promptly deposit into
the Certificate Account from its own funds the amount of such loss or losses
that would have been covered under the individual policy but are not covered
under the blanket Insurance Policy because of such deductible clause to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan, including the One Post Office Square Whole Loan,
or in the absence of such deductible limitation, the deductible limitation which
is consistent with the Servicing Standards. In connection with its activities as
administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the Servicer or the Special Servicer on behalf of the Trustee as the loss
payee, then to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Servicer or
the Special Servicer shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on the related
Mortgage Properties and REO Properties. In the event the Servicer or the
Special Servicer shall cause any Mortgaged Property or REO Property to be
covered by such master single interest or force-placed insurance policy,
the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer as a Servicing
Advance. Such master single interest or force-placed policy may contain a
deductible clause, in which case the Servicer or the Special Servicer
shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying
with the provisions of Section 3.07(a), and there shall have been one or
more losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single or force-placed
interest policy because of such deductible clause, to the extent that any
such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, including the One Post Office Square Whole Loan,
or, in the absence of any such deductible limitation, the deductible
limitation which is consistent with the Servicing Standards.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees acting on behalf of
the Servicer and the Special Servicer in connection with its activities under
this Agreement. Notwithstanding the foregoing, so long as the long term debt or
the deposit obligations or claims-paying ability of the Servicer or the Special
Servicer, as applicable, is rated at xxxxx "X0" by Xxxxx'x and "A" by S&P, the
Servicer or the Special Servicer, as applicable, shall be allowed to provide
self-insurance with respect to a fidelity bond and an Errors and Omissions
Insurance Policy. Such amount of coverage shall be in such form and amount as
are consistent with the Servicing Standards. Coverage of the Servicer or the
Special Servicer under a policy or bond obtained by an Affiliate of the Servicer
or the Special Servicer and providing the coverage required by this Section
3.07(c) shall satisfy the requirements of this Section 3.07(c). The Special
Servicer and the Servicer will promptly report in writing to the Trustee any
material changes that may occur in their respective fidelity bonds, if any,
and/or their respective errors and omissions Insurance Policies, as the case may
be, and will furnish to the Trustee copies of all binders and policies or
certificates evidencing that such bonds, if any, and insurance policies are in
full force and effect. The Servicer and the Special Servicer shall each cause
the Trustee to be an additional loss payee on any policy currently in place or
procured pursuant to the requirements of this Section 3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standards that any Mortgaged Property is in a federally designated
special flood hazard area (and such flood insurance has been made available),
the Servicer will use efforts consistent with the Servicing Standards to cause
the related Mortgagor (in accordance with applicable law and the terms of the
Mortgage Loan documents) to maintain, and, if the related Mortgagor shall
default in its obligation to so maintain, shall itself maintain to the extent
available at commercially reasonable rates (as determined by the Servicer in
accordance with the Servicing Standards and to the extent the Trustee, as
mortgagee, has an insurable interest therein), flood insurance in respect
thereof, but only to the extent the related Mortgage Loan permits the mortgagee
to require such coverage and the maintenance of such coverage is consistent with
the Servicing Standards. Such flood insurance shall be in an amount equal to the
lesser of (i) the unpaid principal balance of the related Mortgage Loan, and
(ii) the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. If the cost of any insurance described above
is not borne by the Mortgagor, the Servicer shall promptly make a Servicing
Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer or, with respect to all Non-Specially Serviced Mortgage Loans,
the Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or waive its right to exercise provided that, (i) with respect to all
Non-Specially Serviced Mortgage Loans, the Servicer has obtained the prior
written consent of the Special Servicer, which consent shall be deemed given 10
Business Days after receipt by the Special Servicer from the Servicer of the
Servicer's analysis and recommendation with respect to such waiver together with
such other information reasonably required by the Special Servicer, (ii) with
respect to all Specially Serviced Mortgage Loans and Non-Specially Serviced
Mortgage Loans having a Stated Principal Balance greater than or equal to
$2,500,000, the Special Servicer shall, prior to consenting to such a proposed
action of the Servicer, obtain, and, prior to itself taking such an action, the
Special Servicer shall obtain, the prior written consent of the Directing
Certificateholder, which consent shall be deemed given 10 Business Days after
receipt by the Directing Certificateholder of the Servicer's analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder (this clause (ii) shall
not be a condition to the deemed consent in clause (i)), and (iii) with respect
to any Mortgage Loan (x) with a Stated Principal Balance greater than or equal
to $20,000,000, (y) with a Stated Principal Balance greater than 5% of the
aggregate Stated Principal Balance of all the Mortgage Loans then outstanding or
(z) together with any other Mortgage Loans cross-collateralized with such
Mortgage Loan, or together with all other Mortgage Loans with the same or an
affiliated mortgagor, is one of the ten largest of the then outstanding Mortgage
Loans, by Stated Principal Balance, the Servicer or the Special Servicer, as the
case may be, shall not take such action unless it has obtained confirmation from
each Rating Agency stating that none of the then-current rating or ratings of
all outstanding Classes of the Certificates would be downgraded or withdrawn by
such Rating Agency, as a result of such waiver) any right it may have with
respect to such Mortgage Loan or Companion Loan (x) to accelerate the payments
there on or (y) to withhold its consent to the sale or transfer.
(b) As to each 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
(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 Fund, the
Special Servicer or, with respect to all Non-Specially Serviced Mortgage Loans,
the Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or waive its right to exercise, provided that, (i) (a) with respect to
all Non-Specially Serviced Mortgage Loans, the Servicer has made a
recommendation and obtained the consent of the Special Servicer, which consent
shall be deemed given ten (10) Business Days after receipt by the Special
Servicer from the Servicer of the Servicer's analysis and recommendation with
respect to such waiver together with such other information reasonably required
by the Special Servicer and (b) the Servicer or the Special Servicer, as the
case may be, has obtained from each Rating Agency a confirmation that such
waiver would not result in the downgrade, withdrawal or qualification of the
then-current ratings on any Class of outstanding Certificates if such Mortgage
Loan (1) has an outstanding principal balance (together with any Mortgage Loans
cross-collateralized with such Mortgage Loan) that is greater than or equal to
2% of the Stated Principal Balance of the outstanding Mortgage Loans or (2) has
an LTV Ratio (including existing and proposed debt) greater than 85% (including
any proposed debt) or (3) a Debt Service Coverage Ratio less than 1.20x (in each
case, determined based upon the aggregate of the Stated Principal Balance of the
Mortgage Loan and the principal amount of the proposed additional loan) or (4)
is one of the ten (10) largest Mortgage Loans (by Stated Principal Balance) or
(5) has a Stated Principal Balance over $20,000,000) 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 Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(f),
neither the Servicer nor the Special Servicer shall agree to modify, waive or
amend any term of any Mortgage Loan in connection with the taking of, or the
failure to take, any action pursuant to this Section 3.08. The Special Servicer
shall provide copies of any waivers it effects pursuant to Section 3.08(a) or
(b) to the Servicer and each Rating Agency with respect to each Mortgage Loan.
To the extent not previously provided, the Servicer shall provide copies of any
waivers it effects pursuant to Section 3.08(a) or (b) to the Special Servicer
and each Rating Agency with respect to each Mortgage Loan. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation pursuant to Section 3.08(a) or (b) is not paid by the related
Mortgagor, such fee is to be an expense of the Trust.
(e) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Directing Certificateholder
approval, Rating Agency Confirmation or Special Servicer approval (provided the
Servicer delivers notice thereof to the Special Servicer and Directing
Certificateholder, except to the extent that the Special Servicer or the
Directing Certificateholder, as the case may be, notifies the Servicer that such
party does not desire to receive copies of such items), (i) grant waivers of
non-material covenant defaults (other than financial covenants), including late
financial statements; (ii) grant releases of non-material, non-income producing
parcels of a Mortgaged Property that do not materially affect the use or value
of the Mortgaged Property or the ability of the related Mortgagor to pay amounts
due in respect of the Mortgage Loan as and when due; (iii) approve or consent to
grants of easements or right of way for utilities, access, parking, public
improvements or another purpose or subordinations of the lien of Mortgage Loans
to easements that do not materially affect the use or value of a Mortgaged
Property or a Mortgagor's ability to make any payments with respect to the
related Mortgage Loan; (iv) grant other routine approvals, including the
granting of subordination, non-disturbance and attornment agreements and leasing
consents that affect less than the lesser of (a) 30% of the net rentable area of
the Mortgaged Property, or (b) 30,000 square feet; (v) consents to actions
related to condemnation of non-material, non-income producing parcels of the
Mortgaged Property that do not materially affect the use or value of the
Mortgaged Property or the ability of the related Mortgagor to pay amounts due in
respect of the Mortgage Loan as and when due; (vi) consents to a change in
property management relating to any Mortgage Loan with respect to Mortgage Loans
with an outstanding principal balance of less than $10,000,000; and (vii)
approve of annual operating budgets; provided that any such modification, waiver
or amendment (w) would not in any way affect a payment term of the Certificates,
(x) would not constitute a "significant modification" of such Mortgage Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not otherwise
cause any of the Upper-Tier REMIC, Lower-Tier REMIC or Loan REMIC to fail to
qualify as a REMIC or cause the Grantor Trust to fail to qualify as a grantor
trust under subpart E, Part I of subchapter J of the Code for federal income tax
purposes, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standards, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any other document contemplated hereby.
(f) Notwithstanding any other provision of this Agreement, the
Servicer may not waive its rights or grant its consent under any "due-on-sale"
or "due-on-encumbrance" clause without the consent of the Special Servicer and
the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice together with the
recommendation and analysis with respect to such waiver from the Special
Servicer of a proposed waiver or consent under any "due-on-sale" or
"due-on-encumbrance" clause in which to grant or withhold its consent (provided
that if the Special Servicer fails to receive a response to such notice from the
Directing Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
(g) Notwithstanding the foregoing, with respect to the One Post
Office Square Whole Loan, prior to the occurrence and continuance of a One Post
Office Square Control Appraisal Event, the rights set forth above will be
exercised by the One Post Office Square Representative pursuant to Section 3.29
hereto. Following the occurrence and during the continuance of a One Post Office
Square Control Appraisal Event, the Directing Certificateholder shall exercise
such rights in conjunction with the holder of the One Post Office Square
Companion Note (or the controlling class of any One Post Office Square Companion
Loan Securities, if applicable), pursuant to the procedure set forth in the One
Post Office Square Intercreditor Agreement.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09 and Section 3.30, exercise reasonable efforts,
consistent with the Servicing Standards, to foreclose upon or otherwise
comparably convert (which may include an REO Acquisition) the ownership of
property securing such Mortgage Loans or Companion Loans, as come into and
continue in default as to which no satisfactory arrangements can be made for
collection of delinquent payments, and which are not released from the Trust
Fund pursuant to any other provision hereof. The foregoing is subject to the
provision that, in any case in which a Mortgaged Property shall have suffered
damage from an Uninsured Cause, the Servicer or Special Servicer shall not be
required to make a Servicing Advance and expend funds toward the restoration of
such property unless the Special Servicer has determined in its reasonable
discretion that such restoration will increase the net proceeds of liquidation
of such Mortgaged Property to Certificateholders after reimbursement to the
Servicer for such Servicing Advance, and the Servicer or Special Servicer has
not determined that such Servicing Advance together with accrued and unpaid
interest thereon would constitute a Nonrecoverable Advance. The Special Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer or upon
request of the Special Servicer, to the Special Servicer), provided that, in
each case, such cost or expense would not, if incurred, constitute a
Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall
be construed so as to require the Servicer or the Special Servicer, on behalf of
the Trust, to make a bid on any Mortgaged Property at a foreclosure sale or
similar proceeding that is in excess of the fair market value of such property,
as determined by the Servicer or the Special Servicer in its reasonable judgment
taking into account the factors described in Section 3.18(b) and the results of
any Appraisal obtained pursuant to the following sentence, all such bids to be
made in a manner consistent with the Servicing Standards. If and when the
Special Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Servicer, as
the case may be, is authorized to have an Appraisal performed with respect to
such property by an Independent MAI-designated appraiser the cost of which shall
be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 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 obtained an Opinion of Counsel
(the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that the holding of such personal property by the Trust Fund
(to the extent not allocable to a Companion Loan) will not cause the
imposition of a tax on the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC under the REMIC Provisions or cause the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMIC to fail to qualify as a REMIC at any
time that any Uncertificated Lower-Tier Interest, Loan REMIC Regular
Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09
and Section 3.30, neither the Special Servicer nor the Servicer shall, on behalf
of the Trustee, obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, 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 comparable law, unless
(as evidenced by an Officer's Certificate to such effect delivered to the
Trustee) the Special Servicer has previously determined in accordance with the
Servicing Standards, based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person who regularly conducts Environmental
Assessments and performed within six months prior to any such acquisition of
title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, 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, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer or the Special Servicer as a Servicing Advance and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the Servicer as a
Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which
case it shall be an expense of the Trust Fund and may be withdrawn by the
Servicer from the Certificate Account at the direction of the Special Servicer);
and if any such Environmental Assessment so warrants, the Special Servicer shall
(except with respect to any Companion Loan and any Environmental Assessment
ordered after the related AB Mortgage Loan or the One Post Office Square Whole
Loan, as applicable, has been paid in full), at the expense of the Trust Fund,
perform such additional environmental testing as it deems necessary and prudent
to determine whether the conditions described in clauses (i) and (ii) of the
preceding sentence have been satisfied. The Special Servicer shall review and be
familiar with the terms and conditions relating to enforcing claims and shall
monitor the dates by which any claim or action must be taken (including
delivering any notices to the insurer and using reasonable efforts to perform
any actions required under such policy) under each environmental insurance
policy in effect and obtained on behalf of the mortgagee to receive the maximum
proceeds available under such policy for the benefit of the Certificateholders
and the Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan
REMIC Regular Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 2 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3 of the applicable Mortgage
Loan Purchase Agreement, then the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage, provided that, if such Mortgage Loan has a then
outstanding principal balance of greater than $1,000,000, then prior to the
release of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee,
the Paying Agent, the Servicer and the Directing Certificateholder in writing of
its intention to so release such Mortgaged Property and the bases for such
intention, (ii) the Paying Agent shall have notified the Certificateholders in
writing of the Special Servicer's intention to so release such Mortgaged
Property, (iii) the Holders of Certificates entitled to a majority of the Voting
Rights shall have consented to such release within 30 days of the Paying Agent's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent), and (iv) the Special Servicer shall have received written
confirmation from each Rating Agency that such release will not cause the
downgrade, withdrawal or qualification of any of the then-current ratings of any
Class of Certificates. To the extent any fee charged by each Rating Agency in
connection with rendering such written confirmation is not paid by the related
Mortgagor, such fee is to be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Paying Agent, the Directing
Certificateholder and the Servicer monthly regarding any actions taken by the
Special Servicer with respect to any Mortgaged Property securing a Defaulted
Mortgage Loan as to which the environmental testing contemplated in subsection
(c) above has revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof has not been satisfied, in each case
until the earlier to occur of satisfaction of both such conditions, repurchase
of the related Mortgage Loan by the applicable Mortgage Loan Seller or release
of the lien of the related Mortgage on such Mortgaged Property. The Paying Agent
shall forward, or cause to be forwarded all such reports to each Rating Agency
and the Certificateholders upon request.
(f) The Special Servicer shall provide the Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan which is abandoned or foreclosed and the
Servicer shall report to the Internal Revenue Service and the related Mortgagor,
in the manner required by applicable law, such information and the Servicer
shall report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Servicer by the Special Servicer. The
Servicer shall deliver a copy of any such report to the Trustee and the Paying
Agent.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Paying Agent,
the Directing Certificateholder and the Servicer and in no event later than the
next succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Certificate Account. pursuant to Section 3.04(a) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
seven Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Servicer or Special
Servicer, as the case may be; provided, however, that in the case of the payment
in full of the One Post Office Square Mortgage Loan or One Post Office Square B
Note, the Mortgage Loan File with respect to the One Post Office Square Whole
Loan shall not be released by the Trustee unless such Mortgage Loan that is paid
in full is the sole remaining portion of the One Post Office Square Whole Loan
in the Trust Fund. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan (including any related Companion Loan), the Servicer or the
Special Servicer shall deliver to the Trustee a Request for Release signed by a
Servicing Officer. Upon receipt of the foregoing, the Trustee shall deliver or
cause the related Custodian to deliver, the Mortgage File or any document
therein to the Servicer or the Special Servicer (or a designee), as the case may
be. Upon return of such Mortgage File or such document to the Trustee or the
related Custodian, or the delivery to the Trustee of a certificate of a
Servicing Officer of the Servicer or the Special Servicer, as the case may be,
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation which are required to be
deposited into the Certificate Account pursuant to Section 3.04(a) have been or
will be so deposited, or that such Mortgage Loan has become an REO Property, a
copy of the Request for Release shall be released by the Trustee to the Servicer
or the Special Servicer (or a designee), as the case may be, with the original
being released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note (including any note evidencing a related
Companion Loan) or Mortgage or to obtain a deficiency judgment, or to enforce
any other remedies or rights provided by the Mortgage Note or Mortgage or
otherwise available at law or in equity. The Special Servicer shall be
responsible for the preparation of all such documents and pleadings. When
submitted to the Trustee for signature, such documents or pleadings shall be
accompanied by a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan,
each Companion Loan and REO Loan. As to each Mortgage Loan, Companion Loan and
REO Loan, the Servicing Fee shall accrue from time to time at the Servicing Fee
Rate and shall be computed on the basis of the Stated Principal Balance of such
Mortgage Loan or Companion Loan, as the case may be, and in the same manner as
interest is calculated on such Mortgage Loan or Companion Loan, as the case may
be, and, in connection with any partial month interest payment, for the same
period respecting which any related interest payment due on such Mortgage Loan
or Companion Loan or deemed to be due on such REO Loan is computed. The
Servicing Fee with respect to any Mortgage Loan, Companion Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Servicing Fee shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan, Companion Loan and REO Revenues allocable as
interest on each REO Loan, and as otherwise provided by Section 3.05(a). The
Servicer shall be entitled to recover unpaid Servicing Fees in respect of any
Mortgage Loan, Companion Loan or REO Loan out of that portion of related
payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO
Revenues (in the case of an REO Loan) allocable as recoveries of interest, to
the extent permitted by Section 3.05(a). The right to receive the Servicing Fee
may not be transferred in whole or in part (except in connection with a transfer
of all of the Servicer's duties and obligations hereunder to a successor
servicer in accordance with the terms hereof).
The Servicer shall be entitled to retain, and shall not be required
to deposit in the Certificate Account pursuant to Section 3.04(a), additional
servicing compensation in the form of (i) 100% of modification, waiver and
consent fees pursuant to Section 3.08(f), provided the consent of the Special
Servicer is not required to take such action, (ii) 100% of all defeasance fees
and application fees received on Non-Specially Serviced Mortgage Loans and (iii)
50% of all assumption, waiver and consent fees pursuant to Section 3.08(a) on
the Non-Specially Serviced Mortgage Loans, to the extent that such fees are paid
by the Mortgagor and for which the Special Servicer's consent or approval is
required on the Non-Specially Serviced Mortgage Loans and only to the extent
that all amounts then due and payable with respect to the related Mortgage Loan
have been paid. In addition, the Servicer shall be entitled to retain as
additional servicing compensation any charges for processing Mortgagor requests,
beneficiary statements or demands reasonable and customary consent fees, fees in
connection with defeasance, if any, and other customary charges, and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor and shall not be required to
deposit such amounts in the Certificate Account pursuant to Section 3.04(a).
Subject to Section 3.11(d), the Servicer shall also be entitled to additional
servicing compensation in the form of: (i) Penalty Charges collected on Mortgage
Loans during the period such Mortgage Loans were Non-Specially Serviced Mortgage
Loans, but only to the extent actually paid by the related Mortgagor and to the
extent that all interest on related Advances and all additional Trust Fund
expenses (other than Special Servicing Fees) payable with respect to such
Mortgage Loan have been paid since the Closing Date, (ii) interest or other
income earned on deposits relating to the Trust Fund in the Certificate Account
in accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for the period from the prior P&I
Advance Date to the P&I Advance Date related to such Distribution Date), (iii)
interest or other income earned on deposits in the Servicing Account which are
not required by applicable law or the related Mortgage Loan to be paid to the
Mortgagor and (iv) the difference, if positive, between Prepayment Interest
Excess and Prepayment Shortfalls collected on the Mortgage Loans during the
related Due Period. The Servicer shall be required to pay out of its own funds
all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of its Sub-Servicers and the premiums for any blanket Insurance Policy
insuring against hazard losses pursuant to Section 3.07), if and to the extent
such expenses are not payable directly out of the Certificate Account, and the
Servicer shall not be entitled to reimbursement therefor except as provided in
this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
and in the same manner as interest is calculated on the Specially Serviced
Mortgage Loans and, in connection with any partial month interest payment, for
the same period respecting which any related interest payment due on such
Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a). The right to
receive the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(c) Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans to the extent such fees are paid by the Mortgagor and
(ii) 50% of all assumption, waiver and consent fees pursuant to Section 3.08(a)
received with respect to all Non-Specially Serviced Mortgage Loans and for which
the Special Servicer's consent or approval is required, shall be promptly paid
to the Special Servicer by the Servicer to the extent such fees are paid by the
Mortgagor and shall not be required to be deposited in the Certificate Account
pursuant to Section 3.04(a). The Special Servicer shall also be entitled to
additional servicing compensation in the form of a Workout Fee with respect to
each Corrected Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for
so long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if such loan again becomes
a Specially Serviced Mortgage Loan; provided that a new Workout Fee will become
payable if and when such Specially Serviced Mortgage Loan again becomes a
Corrected Mortgage Loan. If the Special Servicer is terminated (other than for
cause) or resigns, it shall retain the right to receive any and all Workout Fees
payable in respect of Mortgage Loans that became Corrected Mortgage Loans prior
to the time of that termination or resignation except the Workout Fees will no
longer be payable if the Mortgage Loan subsequently becomes a Specially Serviced
Loan. If the Special Servicer resigns or is terminated (other than for cause),
it will receive any Workout Fees payable on Specially Serviced Mortgage Loans
for which the resigning or terminated Special Servicer had cured the event of
default through a modification, restructuring or workout negotiated by the
Special Servicer and evidenced by a signed writing with respect to which one (1)
scheduled payment has been made, but which had not as of the time the Special
Servicer resigned or was terminated become a Corrected Mortgage Loan solely
because the Mortgagor had not had sufficient time to make three consecutive
timely Monthly Payments and which subsequently becomes a Corrected Mortgage Loan
as a result of the Mortgagor making such three consecutive timely Monthly
Payments. The successor special servicer will not be entitled to any portion of
such Workout Fees. A Liquidation Fee will be payable with respect to each
Specially Serviced Mortgage Loan as to which the Special Servicer receives any
Liquidation Proceeds or Insurance and Condemnation Proceeds subject to the
exceptions set forth in the definition of Liquidation Fee. Notwithstanding
anything to the contrary described above, no Liquidation Fee will be payable
based on, or out of, Liquidation Proceeds received in connection with the
repurchase of any Mortgage Loan by a Mortgage Loan Seller for a breach of
representation or warranty or for defective or deficient Mortgage Loan
documentation so long as such repurchase is completed within the 90-day period
or such other additional period provided for such repurchase in this Agreement
and the Mortgage Loan Purchase Agreement, the purchase of any Specially Serviced
Mortgage Loan by the Majority Controlling Class Certificateholder (or with
respect to the One Post Office Square B Note, by the One Post Office Square
Controlling Holder pursuant to Section 3.18(g), the Servicer or the Special
Servicer or the purchase of all of the Mortgage Loans and REO Properties in
connection with an optional termination of the Trust Fund pursuant to Section
9.01. If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds
are received with respect to any Corrected Mortgage Loan and the Special
Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable
based on and out of the portion of such Liquidation Proceeds and Insurance and
Condemnation Proceeds that constitute principal and/or interest on such Mortgage
Loan. Notwithstanding anything herein to the contrary, the Special Servicer
shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not
both, with respect to proceeds on any Mortgage Loan. Subject to clause (d)
below, the Special Servicer will also be entitled to additional fees in the form
of Penalty Charges on Specially Serviced Mortgage Loans which are collected
during such time as such Mortgage Loan was a Specially Serviced Mortgage Loan,
but only to the extent actually collected from the related Mortgagor and to the
extent that all interest on Advances and additional Trust Fund expenses payable
with respect to the related Mortgage Loan have been paid since the Closing Date.
The Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(d) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Distribution Date shall be applied (in such order) to reimburse (i) the
Servicer, the Special Servicer or the Trustee for interest on Advances on such
Mortgage Loan due on such Distribution Date, (ii) the Trust Fund for all
interest on Advances previously paid to the Servicer, the Special Servicer or
the Trustee pursuant to Section 3.05(a)(vi) hereof and (iii) the Trust Fund for
costs of inspections by the Special Servicer, all unpaid Advances and additional
Trust Fund expenses (other than Special Servicing Fees) incurred since the
Closing Date, Penalty Charges remaining thereafter shall be distributed to the
Servicer, if and to the extent collected while the Mortgage Loan was a
Non-Specially Serviced Mortgage Loan and to the Special Servicer if and to the
extent collected on such Mortgage Loan during the period such Mortgage Loan was
a Specially Serviced Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause
to be performed (at its own expense), a physical inspection of each Mortgaged
Property at least once every 12 months commencing in the calendar year 2004 (and
each Mortgage property shall be inspected on or prior to September 2004);
provided, however, that if a physical inspection has been performed by the
Special Servicer in the previous 12 months, the Servicer will not be required to
perform or cause to be performed, such physical inspection; provided, further,
that if any scheduled payment becomes more than 60 days delinquent on the
related Mortgage Loan, the Special Servicer shall inspect the related Mortgaged
Property as soon as practicable after such Mortgage Loan becomes a Specially
Serviced Mortgage Loan and annually thereafter for so long as such Mortgage Loan
remains a Specially Serviced Mortgage Loan. The cost of such inspection by the
Special Servicer shall be an expense of the Trust Fund, reimbursed first from
Penalty Charges actually received from the related Mortgagor and then from the
Certificate Account pursuant to Section 3.05(a)(ii). The Special Servicer or the
Servicer, as applicable, shall prepare or cause to be prepared a written report
of each such inspection detailing the condition of the Mortgaged Property and
specifying the existence of (i) any vacancy in the Mortgaged Property that the
preparer of such report deems material, (ii) any sale, transfer or abandonment
of the Mortgaged Property of which it has knowledge, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material, (iv) any visible material waste committed on the Mortgaged Property
and (v) photographs of each inspected Mortgaged Property. The Special Servicer
and the Servicer shall deliver a copy of each such report prepared by the
Special Servicer and the Servicer, respectively, to the other, and to the
Directing Certificateholder electronically using the ARCap naming convention the
form of which is attached hereto as Exhibit V (the "ARCap Naming Convention"),
to the Trustee, the Paying Agent and the Rating Agencies within five (5)
Business Days after request (or if such request is received before such report
is completed, within five (5) Business Days after completion of such report).
The Paying Agent shall deliver a copy of each such report to the Controlling
Class Certificateholder (and with respect to the One Post Office Square Whole
Loan, the One Post Office Square Controlling Holder) upon request and to each
Holder of a Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P and Class NR Certificate, upon request (which such request may state
that such items be delivered until further notice).
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans (and each Companion Loan), if delivery of
such items is required pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any Non-Specially Serviced
Mortgage Loan shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and the quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the Servicer within five (5) days of receipt and the Servicer
and the Special Servicer each shall deliver copies of all the foregoing items so
collected thereby to the Trustee, the Paying Agent and the Directing
Certificateholder (electronically using the ARCap Naming Convention) and, upon
request, to the Depositor and each other, in each case within 60 days of its
receipt thereof, but in no event, the case of annual statements, later than June
1 of each year. The Paying Agent shall, upon request, deliver copies (in hard
copy, electronic format or make available on its Internet website) of the
foregoing items to the Underwriters, the Rating Agencies, the Trustee, the
Controlling Class Certificateholders, the Mortgage Loan Sellers or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in
Certificates held thereby, any Certificate Owner, a copy (or image in suitable
electronic media) of each such report prepared by the Servicer or the Special
Servicer.
Within 105 calendar days after the end of each of the first three
calendar quarters (in each year) for the trailing or quarterly information
received, commencing in the quarter ending on March 31, 2004, the Servicer (in
the case of the Mortgage Loans that are Non-Specially Mortgage Loans) or the
Special Servicer (in the case of the Specially Serviced Mortgage Loans) shall
deliver to the Paying Agent and the Directing Certificateholder a CMSA Operating
Statement Analysis Report and a CMSA Financial File for each Mortgage Property
(in electronic format), prepared using the non-normalized quarterly and
normalized year-end operating statements and rent rolls received from the
related Mortgagor. Beginning in 2004 for year-end 2003, within 45 days after
receipt by the Servicer, with respect to Non-Specially Serviced Mortgage Loans,
or the Special Servicer with respect to Specially Serviced Mortgage Loans of any
annual operating statements or rent rolls with respect to any Mortgaged Property
or REO Property, or if such date would be after June 1 of any year, then within
30 days after receipt, the Servicer shall, based upon such operating statements
or rent rolls received, prepare (or, if previously prepared, update) the
analysis of operations and the CMSA NOI Adjustment Worksheet and the CMSA
Operating Statement Analysis Report. Upon the occurrence and continuation of a
Servicing Transfer Event, the Servicer shall provide the Special Servicer with
all prior Operating Statement Analysis Reports and NOI Adjusted Worksheets for
the related Mortgage Loan (including underwritten figures), and the Special
Servicer's obligations hereunder shall be subject to its having received all
such reports. The Servicer and Special Servicer shall forward to the other and
the Directing Certificateholder electronically monthly all operating statements
and rent rolls received from any Mortgagor from the prior month. All CMSA
Operating Statement Analysis Reports shall be maintained by the Servicer with
respect to each Mortgaged Property and REO Property, and the Servicer shall
forward copies (in electronic format with ARCap Naming Convention) thereof and
the related operating statements or rent rolls (in each case, promptly following
the initial preparation and each material revision thereof) to the Paying Agent
(in electronic format only), the Directing Certificateholder (and with respect
to the One Post Office Square Whole Loan, the One Post Office Square
Representative) and the Special Servicer (in the case of the Directing
Certificateholder, electronic copies in the ARCap Naming Convention). The Paying
Agent shall, upon request and to the extent such items have been delivered to
the Paying Agent by the Servicer, deliver to the Trustee, the Underwriters, the
Rating Agencies, the Mortgage Loan Sellers, any Certificateholder or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such CMSA Operating
Statement Analysis Report (or update thereof) and the related operating
statement or rent rolls. The Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property. Each
CMSA Operating Statement Analysis Report shall be substantially in the form of
Exhibit M-12 attached hereto (or, at the discretion of the Servicer, or the
Special Servicer, as applicable, provided that no less information is provided
than is set forth in Exhibit M-12 in a CMSA format.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Servicer and the Directing
Certificateholder the CMSA Specially Serviced Loan File (or data files relating
to reports of the Servicer) with respect to the Specially Serviced Mortgage
Loans and any REO Properties, providing the information required of the Special
Servicer in an electronic format, reasonably acceptable to the Servicer as of
such Determination Date, which CMSA Specially Serviced Loan File shall include
data, to enable Servicer to produce the following CMSA Supplement Reports: (i) a
CMSA Delinquent Loan Status Report, (ii) a CMSA Property File, (iii) a CMSA
Historical Liquidation Report, (iv) a CMSA Historical Loan Modification Report,
(v) a CMSA REO Status Report, (vi) a CMSA Comparative Financial Status Report
and (vii) a CMSA NOI Adjustment Worksheet and a CMSA Operating Statement
Analysis Report.
(e) Not later than 1:00 p.m. (New York City time) on the Business
Day prior to the Distribution Date, the Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered in electronic format to
the Paying Agent data files relating to the following reports: (i) to the extent
the Servicer has received the CMSA Specially Serviced Loan File at the time
required, the most recent CMSA Delinquent Loan Status Report, CMSA Historical
Liquidation Report, CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, CMSA Loan Setup File (with respect to the first Distribution Date)
and CMSA REO Status Report, (ii) the most recent CMSA Property File, and CMSA
Comparative Financial Status Report (in each case incorporating the data
required to be included in the CMSA Specially Serviced Loan File pursuant to
Section 3.12(d) by the Special Servicer and Servicer), (iii) a CMSA Servicer
Watchlist with information that is current as of such Determination Date, (iv)
CMSA Financial File, (v) CMSA Loan Level Reserve LOC Report, and (vi) CMSA
Reconciliation of Funds Report. Not later than 2:00 p.m. (New York City time)
two (2) Business Days prior to the Distribution Date, the Servicer shall deliver
or cause to be delivered to the Paying Agent via electronic format the CMSA Loan
Periodic Update File.
(f) The Special Servicer shall deliver to the Servicer the reports
required of the Special Servicer pursuant to Section 3.12(c) and Section
3.12(d), and the Servicer shall deliver to the Paying Agent the reports set
forth in Section 3.12(e). The Servicer may, absent manifest error, conclusively
rely on the reports and/or data to be provided by the Special Servicer pursuant
to Section 3.12(c) and Section 3.12(d). The Paying Agent may, absent manifest
error, conclusively rely on the reports and/or data to be provided by the
Servicer pursuant to Section 3.12(e). In the case of information or reports to
be furnished by the Servicer to the Paying Agent pursuant to Section 3.12(e), to
the extent that such information or reports are, in turn, based on information
or reports to be provided by the Special Servicer pursuant to Section 3.12(c) or
Section 3.12(d) and to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(c) or Section
3.12(d), the Servicer shall have no obligation to provide such information or
reports to the Paying Agent until it has received the requisite information or
reports from the Special Servicer, and the Servicer shall not be in default
hereunder due to a delay in providing the reports required by Section 3.12(e)
caused by the Special Servicer's failure to timely provide any information or
report required under Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the Special Servicer, as
the case may be, would violate any applicable law or any provision of a Mortgage
Loan document prohibiting disclosure of information with respect to the Mortgage
Loans or Mortgaged Properties. The Servicer and Special Servicer may disclose
any such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standards. The
Servicer or the Special Servicer may affix to any information provided by it any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(h) If the Servicer or the Special Servicer is required to deliver
any statement, report or information under any provisions of this Agreement, the
Servicer or the Special Servicer, as the case may be, may satisfy such
obligation by (x) physically delivering a paper copy of such statement, report
or information, (y) delivering such statement, report or information in a
commonly used electronic format or (z) except with respect to information to be
provided to the Paying Agent, making such statement, report or information
available on the Servicer's or the Special Servicer's Internet website, unless
this Agreement expressly specifies a particular method of delivery.
The Servicer and the Paying Agent, as applicable, shall prepare and
deliver electronically or, with respect to the Paying Agent, make available on
its website, to the Directing Certificateholder, the reports and information
described in Exhibit N in the forms and formats and within the timeframes set
forth therein.
None of the Servicer, the Special Servicer or the Paying Agent shall
have any liability for disseminating information in accordance with the terms of
this Agreement.
Section 3.13 Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, the Paying Agent and the Rating Agencies, with a copy to the Depositor,
on or before March 15th of each year, beginning March 15, 2004, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the Servicer or the Special Servicer, as the case may be, during
the preceding calendar year and of its performance under this Agreement has been
made under such officer's supervision, (ii) to the best of such officer's
knowledge, based on such review, the Servicer or the Special Servicer, as the
case may be, has fulfilled in all material respects its obligations under this
Agreement throughout such year, or, if there has been a material default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof and (iii) the Servicer or the Special
Servicer, as the case may be, has received no notice regarding qualification, or
challenging the status of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC as a REMIC from the Internal Revenue Service or any other governmental
agency or body or, if it has received any such notice, specifying the details
thereof. A copy of such Officer's Certificate may be obtained by
Certificateholders upon written request to the Paying Agent pursuant to Section
8.12 hereof. Promptly after receipt of such Officer's Certificates, the
Depositor shall review such Officer's Certificates and, if applicable, consult
with the Servicer or the Special Servicer, as applicable, as to the nature of
any defaults by the Servicer or the Special Servicer, as applicable, in the
fulfillment of any of the Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Trustee, the Paying Agent and each Rating Agency,
with a copy to the Depositor on or before March 15th of each year, commencing
with March 15, 2004, a report stating that (i) it has obtained from the Servicer
or the Special Servicer, as the case may be, a letter of representation
regarding certain matters from the management of the Servicer or the Special
Servicer, as the case may be, which includes an assertion that the Servicer or
the Special Servicer, as the case may be, has maintained an effective internal
control system with respect to the servicing of the Mortgage Loans and 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 Servicer's or the
Special Servicer's, as the case may be, 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
assertion is fairly stated in all material respects, subject to such exceptions
and other qualifications that, in the opinion of such firm, such standards
require it to report. In rendering its report such firm may rely, as to the
matters relating to the direct servicing of commercial and multifamily mortgage
loans by Sub-Servicers, upon comparable reports of firms of independent
certified public accountants rendered on the basis of examinations conducted in
accordance with the same standards (rendered with respect to such Sub-Servicer's
previous fiscal year) with respect to those Sub-Servicers. Promptly after
receipt of such reports, the Depositor shall review such reports and, if
applicable, consult with the Servicer or the Special Servicer, as applicable, as
to the nature of any defaults by the Servicer or the Special Servicer, as
applicable, in the fulfillment of any of the Servicer's or the Special
Servicer's obligations.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Paying Agent, the Depositor, each Mortgage Loan Seller, each Rating Agency, to
the Servicer, or to the Special Servicer, as applicable, and to the OTS, the
FDIC, the Federal Reserve Board and the supervisory agents and examiners of such
boards and such corporations, and any other federal or state banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, and to each Holder of a Class F, Class H, Class J, Class K,
Class L, Class M, Class N, Class P or Class NR Certificate, and to each
Companion Holder (solely with respect to the related AB Mortgage Loan or the One
Post Office Square Whole Loan, as applicable) access to any documentation or
information regarding the Mortgage Loans and the Trust Fund within its control
which may be required by this Agreement or by applicable law, and the Special
Servicer shall provide such access and information to the Trustee, the Servicer
and the Directing Certificateholder (and with respect to the One Post Office
Square Whole Loan, to the One Post Office Square Representative). At the
election of the Servicer or the Special Servicer, such access may be afforded to
such Person identified above by the delivery of copies of information as
requested by such Person and the Servicer or the Special Servicer shall be
permitted to require payment (other than the Directing Certificateholder) of a
sum sufficient to cover the reasonable out-of-pocket costs incurred by it in
making such copies. Such access shall (except as described in the preceding
sentence) be afforded without charge but only upon reasonable prior written
request and during normal business hours at the offices of the Servicer or the
Special Servicer, as the case may be, designated by it; provided, however, that
Certificateholders and Certificate Owners shall be required to pay their own
photocopying costs and execute a reasonable and customary confidentiality
agreement with respect to such information. The failure of the Servicer or the
Special Servicer to provide access as provided in this Section 3.15 as a result
of a confidentiality obligation shall not constitute a breach of this Section
3.15. The Servicer and the Special Servicer may each deny any of the foregoing
persons access to confidential information or any intellectual property which
the Servicer or the Special Servicer is restricted by license or contract from
disclosing. In connection with providing access to information pursuant to this
Section 3.15 to parties other than the Trustee or the Paying Agent, the Servicer
and the Special Servicer may each (i) affix a reasonable disclaimer to any
information provided by it for which it is not the original source (without
suggesting liability on the part of any other party hereto); (ii) affix to any
information provided by it a reasonable statement regarding securities law
restrictions on such information and/or condition access to information on the
execution of a reasonable confidentiality agreement; (iii) withhold access to
confidential information or any intellectual property; and (iv) withhold access
to items of information contained in the Servicing File for any Mortgage Loan if
the disclosure of such items is prohibited by applicable law or the provisions
of any related Mortgage Loan Documents or would constitute a waiver of the
attorney-client privilege. Notwithstanding any provision of this Agreement to
the contrary, the failure of the Servicer or the Special Servicer to disclose
any information otherwise required to be disclosed by it pursuant to this
Agreement shall not constitute a breach of this Agreement to the extent that the
Servicer or the Special Servicer, as the case may be, determines, in its
reasonable good faith judgment consistent with the Servicing Standards, that
such disclosure would violate applicable law or any provision of a Mortgage Loan
Document prohibiting disclosure of information with respect to the Mortgage
Loans or the Mortgaged Properties, constitute a waiver of the attorney-client
privilege on behalf of the Trust or the Trust Fund or otherwise materially harm
the Trust or the Trust Fund.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or a nominee thereof on
behalf of the Certificateholders and, if applicable, the Companion Holder. The
Special Servicer, on behalf of the Trust Fund, shall sell any REO Property prior
to the close of the third calendar year following the year in which the Trust
Fund acquires ownership of such REO Property, within the meaning of Treasury
Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee, the Paying Agent and the Servicer an Opinion of
Counsel, addressed to the Trustee, the Paying Agent and the Servicer, to the
effect that the holding by the Trust Fund of such REO Property subsequent to the
close of the third calendar year following the year in which such acquisition
occurred will not result in the imposition of taxes on "prohibited transactions"
of the Trust Fund, the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC
constituted thereby as defined in Section 860F of the Code or cause the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Loan REMIC Regular Interests, Uncertificated
Lower-Tier Interests or Certificates are outstanding. If the Special Servicer is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel contemplated by clause (ii)
of the immediately preceding sentence, the Special Servicer shall sell such REO
Property within such longer period as is permitted by such REO Extension or such
Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its being granted the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall be
an expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, the Companion Holder, as their interest shall appear, and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan REMIC
Regular Interests), for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within 1 Business Day after receipt, all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received in respect of an REO
Property. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, leasing, maintenance
and disposition of any REO Property, but only to the extent of amounts on
deposit in the REO Account relating to such REO Property. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Servicer, which shall deposit into the Certificate Account the
aggregate of all amounts received in respect of each REO Property during the
most recently ended Due Period, net of (i) any withdrawals made out of such
amounts pursuant to the preceding sentence and (ii) Net Investment Earnings on
amounts on deposit in the REO Account; provided, however, that the Special
Servicer may retain in such REO Account, in accordance with the Servicing
Standards, such portion of such balance as may be necessary to maintain a
reasonable reserve for repairs, replacements, leasing, management and tenant
improvements and other related expenses for the related REO Property. In
addition, on or prior to each Determination Date, the Special Servicer shall
provide the Servicer with a written accounting of amounts remitted to the
Servicer for deposit in the Certificate Account on such date. The Servicer shall
apply all such amounts as instructed by the Special Servicer on the
Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, consent, protect, operate and lease such REO Property for the
benefit of the Certificateholders and the Companion Holders, as applicable, and
the Trustee (as holder of the Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders (and, in the case of each Loan Pair, the related Companion
Holder) and the Trustee (as holder of the Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests) (as determined by the Special Servicer in
its reasonable judgment in accordance with the Servicing Standards). Subject to
this Section 3.17, the Special Servicer may allow the Trust Fund to earn "net
income from foreclosure property" within the meaning of Section 860G(d) of the
Code if it determines that earning such income is in the best interests of
Certificateholders on a net after-tax basis as compared with net leasing such
REO Property or operating such REO Property on a different basis. In connection
therewith, the Special Servicer shall deposit or cause to be deposited on a
daily basis (and in no event later than 1 Business Day following receipt of such
funds) in the applicable REO Account all revenues received by it with respect to
each REO Property and the related REO Loan, and shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to such REO
Property, funds necessary for the proper operation, management, leasing and
maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer (subject to receiving
notice from the Special Servicer in accordance with the procedures set forth
elsewhere in this Agreement) or Special Servicer shall advance from its own
funds such amount as is necessary for such purposes unless (as evidenced by an
Officer's Certificate delivered to the Trustee, the Depositor, the Paying Agent
and the Directing Certificateholder) such advances would, if made, constitute
Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any 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 any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer or Special Servicer as
a Servicing Advance) 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 at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) 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 REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee, the Paying Agent and the Servicer a statement prepared by the Special
Servicer setting forth the amount of net income or net loss, as determined for
federal income tax purposes, resulting from the operation and management of a
trade or business on, the furnishing or rendering of a non-customary service to
the tenants of, or the receipt of any other amount not constituting Rents from
Real Property in respect of, any REO Property in accordance with Sections
3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer will, from time to time, adjust its fair
value determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with the Servicing Standards,
but not less often than every 90 days. The Special Servicer shall notify the
Trustee, the Servicer, the Paying Agent and the Certificateholder that owns the
largest aggregate Certificate Balance of the Controlling Class (the "Controlling
Class Option Holder") promptly upon its fair value determination and any
adjustment thereto. The Special Servicer shall also deliver to the Servicer, the
Rating Agencies and the Controlling Class Option Holder the most recent
Appraisal of the related Mortgaged Property then in the Special Servicer's
possession, together with such other third-party reports and other information
then in the Special Servicer's possession that the Special Servicer reasonably
believes to be relevant to the fair value determination with respect to such
Mortgage Loan (such materials are, collectively, the "Determination
Information"). If the Special Servicer will not be determining whether the
Option Price represents fair value of the Defaulted Mortgage Loan, pursuant to
the second to last paragraph of Section 3.18(a)(iv), the Special Servicer shall
also deliver the Determination Information to the Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund (with respect to the One Post Office
Square Mortgage Loan and the One Post Office Square B Note, subject to
Section 3.18(d) and Section 3.18(g), respectively,) at a price (the
"Option Price") equal to (A) if the Special Servicer has not yet
determined the fair value of such Defaulted Mortgage Loan, the sum of (1)
the Stated Principal Balance thereof, together with all accrued and unpaid
interest thereon at the Mortgage Rate, (2) any related Yield Maintenance
Charge or prepayment premium (except if the Purchase Option is exercised
by the Controlling Class Option Holder) then payable, (3) all related
Advances for which the Trust Fund or the related Servicer has not been
reimbursed, together with all accrued and unpaid interest thereon at the
Reimbursement Rate, and (4) all accrued Special Servicing Fees and
additional trust fund expenses allocable to such Defaulted Mortgage Loan
whether recovered or unrecovered from the related Mortgagor or (B) if the
Special Servicer has determined the fair value of such Defaulted Mortgage
Loan pursuant to clause (i) above, an amount at least equal to such fair
value. Notwithstanding the foregoing, for a period of sixty (60) days
after it receives notice of the Special Servicer's fair value
determination (the "Controlling Class Certificateholder's Option Period"),
except with respect to the One Post Office Square Mortgage Loan and One
Post Office Square B Note, only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee, the
Paying Agent and the Servicer of such transfer and such notice shall
include the transferee's name, address, telephone number, facsimile number
and appropriate contact person(s) and shall be acknowledged in writing by
the transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, or
(D) subject to the Servicer's determination set forth in clause (iv)
below, upon another Option Holder's exercise of its Purchase Option with
respect to the related Mortgage Loan becoming effective pursuant to clause
(iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer, the Paying Agent and the Trustee written notice thereof (the
"Purchase Option Notice"), in the form of Exhibit J, which notice shall
identify the Person that, on its own or through an Affiliate, will acquire
the related Mortgage Loan upon closing and shall specify a cash exercise
price at least equal to the Option Price. The Purchase Option Notice shall
be delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Special Servicer shall notify
the remaining Option Holders that a Purchase Option has been exercised.
Within ten (10) days thereafter, each remaining Option Holder may submit
to the Special Servicer a Purchase Option Notice for the related Defaulted
Mortgage Loan. Upon the expiration of such ten (10) day period, or such
sooner time as all remaining Option Holders have submitted Purchase Option
Notices, the Special Servicer shall notify the Option Holder whose
Purchase Option Notice included the highest exercise price that the
exercise of its Purchase Option is effective. The Special Servicer shall
also notify the Trustee of such effective exercise. In the event that more
than one Option Holder exercises its Purchase Option at the same price,
the Purchase Option Notice first received by the Special Servicer shall be
effective. The exercise of any Purchase Option pursuant to this clause
(iii) shall be irrevocable; provided that the assignor of the Purchase
Option shall have no liability to the Trust or any other party hereto for
the failure of its third party assignee to close the sale of the Defaulted
Mortgage Loan after its exercise of the option, and upon such failure, the
Purchase Option shall revert to the Option Holder as provided herein as if
the Purchase Option had not been exercised, and the Special Servicer shall
pursue against such assignee whatever remedies it may have against the
assignee.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the
Servicer has received the written notice and the Determination Information
to be provided to Servicer by Special Servicer under Section 3.18(a)(i),
whether the Option Price represents fair value for the Defaulted Mortgage
Loan; provided that, if the Special Servicer is then in the process of
obtaining a new Appraisal with respect to the related Mortgaged Property,
then the Servicer shall make its fair value determination with respect to
such Mortgage Loan as soon as reasonably practicable (but in any event
within thirty (30) days) after the Servicer's receipt of such new
Appraisal. Such fair value determination shall be made in accordance with
Servicing Standards. In determining the fair value of any Defaulted
Mortgage Loan, the Servicer shall take into account, among other factors,
the period and amount of the delinquency on such Mortgage Loan, the
occupancy level and physical condition of the related Mortgaged Property,
the state of the local economy in the area where the Mortgaged Property is
located, and the time and expense associated with a purchaser's
foreclosing on the related Mortgaged Property. In addition, the Servicer
shall refer to the Determination Information and all other relevant
information delivered to it by the Special Servicer or otherwise contained
in the Mortgage File; provided that the Servicer shall take account of any
change in circumstances regarding the related Mortgaged Property known to
the Servicer that has occurred subsequent to, and that would, in the
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Servicer
shall consider all available objective third-party information obtained
from generally available sources, as well as information obtained from
vendors providing real estate services to the Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Servicer may conclusively rely on the opinion and reports of
Independent third parties in making such determination. The Servicer shall
be entitled to receive out of the Certificate Account as additional
compensation a reasonable fee, not to exceed $2,500 plus reasonable
out-of-pocket costs and expenses, for each determination made in
accordance with this clause (iv), provided, however, with respect to any
Mortgage Loan, the $2,500 fee shall be collectible once in any six-month
period. The reasonable cost of all third party consultants and related
reports, including but not limited to appraisals, inspection reports and
broker opinions of value, reasonably incurred by the Servicer pursuant to
this Section 3.18(a)(iv) shall constitute, and be reimbursable as,
Servicing Advances; provided that the Servicer may rely on the most
current Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Servicer and the Special Servicer are Affiliates,
the Trustee, subject to the Directing Certificateholder's reasonable prior
written consent, which consent shall not be unreasonably withheld, shall
designate an Independent third party, independent of the Directing
Certificateholder, to determine whether the Option Price represents fair
value for the Defaulted Mortgage Loan, in the manner and within the time
set forth in the first paragraph of this clause (iv). In the event that
the Trustee is called upon to designate such a third party to make such
determination, the Trustee will not assume any responsibility for such
third party's determination which determination the Trustee shall be
entitled to conclusively rely upon. The Trustee may pay such third party a
fee of up to $2,500. The reasonable costs of all appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Trustee
or any such third party pursuant to this paragraph shall be advanced by
the Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Trustee's designating an Independent
third party, the Special Servicer shall deliver to the Trustee for such
Independent third party's use the Determination Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Servicer within ten (10)
Business Days of its receipt of the Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Servicer specifying the date for closing the purchase
of the related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee
thereof the ownership of such Mortgage Loan on a servicing released basis.
In connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage File to or at the
direction of the purchaser. In any case, the Servicer shall deposit the
purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into the Certificate Account within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Servicer shall immediately notify the Trustee and the Special
Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant
to this clause (v). Thereafter, the Trustee shall notify each Option
Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Status
Report and Servicing Standards; provided, however, the Special Servicer
shall not sell any Defaulted Mortgage Loan (other than in connection with
exercise of a related Purchase Option).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to any
Person any REO Property, if and when the Special Servicer determines, consistent
with the Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund. The Special Servicer shall give the Trustee, the
Servicer, the Paying Agent and the Directing Certificateholder not less than
five (5) Business Days' prior written notice of the Purchase Price and its
intention to (i) purchase any REO Property at the Purchase Price therefor or
(ii) sell any REO Property, in which case the Special Servicer shall accept the
highest offer received from any Person for any REO Property in an amount at
least equal to the Purchase Price therefor. To the extent permitted by
applicable law, and subject to Servicing Standards, the Servicer, an Affiliate
of the Servicer, the Special Servicer or an Affiliate of the Special Servicer,
or an employee of either of them may act as broker in connection with the sale
of any REO Property and may retain from the proceeds of such sale a brokerage
commission that does not exceed the commission that would have been earned by an
independent broker pursuant to a brokerage agreement entered into at arm's
length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the Servicing Standards, that
acceptance of such offer would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower
offer is more likely to perform its obligations, or the terms offered by
the prospective buyer making the lower offer are more favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee shall obtain and
may conclusively rely on the opinion of an Independent appraiser or other
Independent expert in real estate matters retained by the Trustee at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property,
including the collection of all amounts payable in connection therewith. A
sale of any REO Property shall be without recourse to, or representation
or warranty by, the Trustee, the Depositor, the Servicer, the Special
Servicer, the Paying Agent or the Trust Fund (except that any contract of
sale and assignment and conveyance documents may contain customary
warranties of title, so long as the only recourse for breach thereof is to
the Trust Fund) and, if consummated in accordance with the terms of this
Agreement, none of the Servicer, the Special Servicer, the Depositor, the
Paying Agent nor the Trustee shall have any liability to the Trust Fund or
any Certificateholder with respect to the purchase price therefor accepted
by the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) If the One Post Office Square Mortgage Loan is a Specially
Serviced Mortgage Loan that becomes a Defaulted Mortgage Loan, the Special
Servicer shall promptly notify in writing the Servicer and the Paying Agent, and
the Paying Agent, following its receipt of such notice, shall promptly notify
the Holders of the Class PS Certificates. Upon receipt of such notice, the One
Post Office Square Controlling Holder, will have the first option, but not the
obligation, to purchase the One Post Office Square Mortgage Loan from the Trust
Fund at a price equal to the Purchase Price. If the One Post Office Square
Controlling Holder fails to exercise such option pursuant to the terms of the
One Post Office Square Intercreditor Agreement, then the One Post Office Square
Mortgage Loan may be sold in accordance with this Section 3.18.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related AB Intercreditor Agreement, the Companion
Holder, other then the One Post Office Square Companion Holder, will have the
right to purchase the related AB Mortgage Loan, as applicable, or related REO
Property. Such right of the Companion Holder shall be given priority over any
provision described in this Section 3.18. If the AB Mortgage Loan or REO
Property is purchased by the Companion Holder, other than the One Post Office
Square Companion Holder, repurchased by the applicable Mortgage Loan Seller or
otherwise ceases to be subject to this Agreement, the related Companion Loan
will no longer be subject to this Agreement.
(f) In the event the Servicer or the Special Servicer has the right
to purchase any Companion Loan on behalf of the Trust pursuant to the related AB
Intercreditor Agreement, neither the Servicer nor the Special Servicer shall
exercise such right.
(g) Notwithstanding anything in this Section 3.18 to the contrary,
if the One Post Office Square B Note is a Specially Serviced Mortgage Loan that
becomes a Defaulted Mortgage Loan, the Special Servicer shall promptly notify in
writing the Servicer and the Paying Agent, and the Paying Agent, following its
receipt of such notice, shall promptly notify the Holders of the Class PS
Certificates. Upon receipt of such notice, the One Post Office Square
Controlling Holder, will have the option (a "One Post Office Square B Note
Purchase Option"), but not the obligation, to purchase the One Post Office
Square B Note from the Trust Fund at a price equal to the Purchase Price and in
a manner described in this Section 3.18. If the One Post Office Square
Controlling Holder fails to exercise such One Post Office Square B Note Purchase
Option within 30 days of receiving such notice, the One Post Office Square B
Note Purchase Option shall terminate.
Section 3.19 Additional Obligations of Servicer and Special
Servicer.
(a) The Servicer shall deliver all Compensating Interest Payments to
the Paying Agent for deposit in the Distribution Account on each P&I Advance
Date, without any right of reimbursement therefor.
(b) The Servicer shall provide to each Companion Holder any reports
or notices required to be delivered to such Companion Holder pursuant to the
related AB Intercreditor Agreement.
(c) Upon the determination that a previously made Advance is a
Nonrecoverable Advance, to the extent that the reimbursement thereof would
exceed the full amount of the principal portion of general collections deposited
in the Certificate Account, the Servicer or the Trustee, at its own option, as
applicable, instead of obtaining reimbursement for the remaining amount of such
Nonrecoverable Advance pursuant to Section 3.05(a)(v) immediately, may elect to
refrain from obtaining such reimbursement for such portion of the Nonrecoverable
Advance during the one-month collection period ending on the then-current
Determination Date. If the Servicer (or the Trustee) makes such an election at
its sole option to defer reimbursement with respect to all or a portion of a
Nonrecoverable Advance (together with interest thereon), then such
Nonrecoverable Advance (together with interest thereon) or portion thereof shall
continue to be fully reimbursable in the subsequent collection period (subject,
again, to the same sole option to defer; it is acknowledged that, in such a
subsequent period, such Nonrecoverable Advance shall again be payable first from
principal collections as described above prior to payment from other
collections). In connection with a potential election by the Servicer (or the
Trustee) to refrain from the reimbursement of a particular Nonrecoverable
Advance or portion thereof during the one-month collection period ending on the
related Determination Date for any Distribution Date, the Servicer (or the
Trustee) shall further be authorized to wait for principal collections to be
received before making its determination of whether to refrain from the
reimbursement of a particular Nonrecoverable Advance or portion thereof) until
the end of such collection period. The foregoing shall not, however, be
construed to limit any liability that may otherwise be imposed on such Person
for any failure by such Person to comply with the conditions to making such an
election under this subsection or to comply with the terms of this subsection
and the other provisions of this Agreement that apply once such an election, if
any, has been made. Any election by the Servicer (or the Trustee) to refrain
from reimbursing itself for any Nonrecoverable Advance (together with interest
thereon) or portion thereof with respect to any collection period shall not be
construed to impose on the Servicer (or the Trustee) any obligation to make such
an election (or any entitlement in favor of any Certificateholder or any other
Person to such an election) with respect to any subsequent collection period) or
to constitute a waiver or limitation on the right of the Servicer (or the
Trustee) to otherwise be reimbursed for such Nonrecoverable Advance (together
with interest thereon). Any such election by the Servicer or the Trustee shall
not be construed to impose any duty on the other such party to make such an
election (or any entitlement in favor of any Certificateholder or any other
Person to such an election). Any such election by any such party to refrain from
reimbursing itself or obtaining reimbursement for any Nonrecoverable Advance or
portion thereof with respect to any one or more collection periods shall not
limit the accrual of interest on such Nonrecoverable Advance for the period
prior to the actual reimbursement of such Nonrecoverable Advance. None of the
Servicer, the Trustee or the other parties to this Agreement shall have any
liability to one another or to any of the Certificateholders or any of the
Companion Holders for any such election that such party makes as contemplated by
this subsection or for any losses, damages or other adverse economic or other
effects that may arise from such an election. Nothing herein shall give the
Servicer or the Trustee the right to defer reimbursement of a Nonrecoverable
Advance to the extent of any principal collection then available in the
Certificate Account pursuant to Section 3.05(a)(v)
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in Section 3.08(a), Section 3.08(b), Section
3.08(f), Section 3.20(a), Section 3.20(d), and Section 3.20(j), but subject to
any other conditions set forth thereunder, the Servicer shall not modify, waive
or amend a Mortgage Loan without the prior written consent of the Special
Servicer; provided that, the Servicer shall forward to the Special Servicer
requests to extend the maturity date of a Mortgage Loan that is not a Specially
Serviced Mortgage Loan, and the Special Servicer may approve such request,
provided, further, that except as provided in the following sentence, no such
extension entered into pursuant to this Section 3.20(a) shall be for a period of
more than twelve months from the original Maturity Date of such Mortgage Loan or
shall extend the Maturity Date beyond the earlier of (i) two years prior to the
Rated Final Distribution Date and (ii) in the case of a Mortgage Loan secured by
a leasehold estate and not also the related fee interest, the date twenty years
or, to the extent consistent with the Servicing Standards giving due
consideration to the remaining term of the ground lease, ten years, prior to the
expiration of such leasehold estate. If such extension would extend the Maturity
Date of a Mortgage Loan for more than twelve months from and after the original
Maturity Date of such Mortgage Loan and the Mortgage Loan is not in default or
default with respect thereto is not reasonably foreseeable, the Servicer must
provide the Trustee, the Special Servicer and the Directing Certificate-holders
with an opinion of counsel (at the expense of the related Mortgagor) that such
extension would not constitute a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b). Notwithstanding
the foregoing, the Servicer, without the consent of the Special Servicer, may
modify or amend the terms of any Mortgage Loan in order to (i) cure any
ambiguity or mistake therein or (ii) correct or supplement any provisions
therein which may be inconsistent with any other provisions therein or correct
any error, provided that, if the Mortgage Loan is not in default or default with
respect thereto is not reasonably foreseeable, such modification or amendment
would not be a "significant modification" of the Mortgage Loan within the
meaning of Treasury Regulations Section 1.860G-2(b).
Subject to applicable law and the Mortgage Loan or Companion Loan
documents, neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless (i) the Servicer or the
Special Servicer, as applicable, obtains from each Rating Agency (and delivers
to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrading, qualification or withdrawal of the
then current rating assigned to any of the Certificates and (ii) either (a) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan in effect on the
Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
Notwithstanding the foregoing, with respect to the One Post Office
Square Whole Loan, prior to the occurrence and continuance of a One Post Office
Square Control Appraisal Event, (i) the related One Post Office Square
Representative, in lieu of the Directing Certificateholder, shall be entitled to
take all actions under this Section, (ii) any references to the Directing
Certificateholder in this Section shall be deemed to be references to the One
Post Office Square Representative and (iii) the Servicer and the Special
Servicer shall, with respect to the proposed modification, follow the notice and
approval procedures specified in Section 3.29. Following the occurrence and
during the continuance of a One Post Office Square Control Appraisal Event, the
Directing Certificateholder shall exercise such rights in conjunction with the
holder of the One Post Office Square Companion Note (or the controlling class of
any One Post Office Square Companion Loan Securities, if applicable), pursuant
to the procedure set forth in the One Post Office Square Intercreditor
Agreement.
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to (x) the provisions of this Section
3.20(b) and Section 3.20(c), (y) the approval of the Directing Certificateholder
as provided in Section 3.21 and (z) with respect to an AB Loan, the rights of
the related Companion Holder to advise the Special Servicer with respect to, or
consent to, such modification, waiver or amendment pursuant to the terms of the
related AB Intercreditor Agreement. Notwithstanding anything to the contrary in
this Section, to the extent consistent with the Servicing Standards and the One
Post Office Square Intercreditor Agreement (taking into account the extent to
which the One Post Office Square Companion Note is pari passu with the One Post
Office Square Mortgage Loan and that the One Post Office Square B Note is
subordinate to the One Post Office Square Mortgage Loan and the One Post Office
Square Companion Note): (i) no waiver, reduction or deferral of any particular
amounts due on the One Post Office Square Mortgage Loan, as applicable, shall be
effected prior to the waiver, reduction or deferral of the entire corresponding
item in respect of the One Post Office Square B Note; and (ii) no reduction of
the Mortgage Rate on the One Post Office Square Mortgage Loan shall be effected
prior to the reduction of the Mortgage Rate of the One Post Office Square B
Note, to the maximum extent possible.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring twenty years prior to the expiration of
such leasehold; or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) 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 Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer or
the Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable only if it provides the Trustee with an Opinion of Counsel (at the
expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid by the Servicer or Special Servicer as a
Servicing Advance) to the effect that the contemplated waiver, modification or
amendment (i) will not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not
cause (x) any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to
fail to qualify as a REMIC for purposes of the Code or (y) any of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Servicer
nor the Special Servicer may waive the payment of any Yield Maintenance Charge
or the requirement that any prepayment of a Mortgage Loan be made on a Due Date,
or if not made on a Due Date, be accompanied by all interest that would be due
on the next Due Date with respect to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Special Servicer in accordance
with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee, the Directing Certificateholder (or in the case of
the One Post Office Square Whole Loan, the One Post Office Square
Representative) and each other in writing of any modification, waiver or
amendment of any term of any Mortgage Loan and the date thereof, and shall
deliver to the Trustee or the related Custodian for deposit in the related
Mortgage File, an original counterpart of the agreement relating to such
modification, waiver or amendment, promptly (and in any event within 10 Business
Days) following the execution thereof. Following receipt of the Servicer's or
the Special Servicer's, as applicable, delivery of the aforesaid modification,
waiver or amendment to the Paying Agent, the Paying Agent shall forward a copy
thereof to each Holder of a Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P and Class NR Certificate upon request and, if such
modification, waiver or amendment is with respect to the One Post Office Square
Whole Loan, to each Holder of the Class PS Certificates upon request.
(i) [RESERVED].
(j) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan (or any portion
thereof) unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and the Servicer or the Special Servicer, as applicable, has
received (i) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents, (ii) one or more Opinions of Counsel (at the expense of
the related Mortgagor) to the effect that the Trustee, on behalf of the Trust
Fund, will have a first priority perfected security interest in such substituted
Mortgage Property; provided, however, that, to the extent consistent with the
related Mortgage Loan documents, the related Mortgagor shall pay the cost of any
such opinion as a condition to granting such defeasance, (iii) to the extent
consistent with the related Mortgage Loan documents, the Mortgagor shall
establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents, the Servicer shall use its reasonable efforts
to require the related Mortgagor to pay all costs of such defeasance, including
but not limited to the cost of maintaining any successor Mortgagor and (v) to
the extent permissible under the Mortgage Loan documents, the Servicer shall
obtain, at the expense of the related Mortgagor, written confirmation from the
Rating Agencies that such defeasance will not cause the downgrade, withdrawal or
modification of the then current ratings of the Certificates; provided, however,
that (a) the Servicer shall not be required to obtain such written confirmation
from S&P to the extent that the Servicer has delivered to S&P a Defeasance
Certificate substantially in the form of Exhibit W hereto unless such Mortgage
Loan (or Mortgage Loans if the single purpose entity established pursuant to
clause (iii) above holds assets for more than one Mortgagor) at the time of such
defeasance is (A) one of the ten largest Mortgage Loans by Stated Principal
Balance, (B) a Mortgage Loan with a Cut-off Date Principal Balance greater than
$20,000,000 or (C) a Mortgage Loan that represents 5% or more of the Cut-off
Date Principal Balance of all Mortgage Loans and (b) the Servicer shall not be
required to obtain the Xxxxx'x confirmation referenced in clause (v) above with
respect to any Mortgage Loan which has a Stated Principal Balance less than
$20,000,000 and represents less than 5% of the Stated Principal Balance, so long
as such Mortgage Loan is not one of the ten largest Mortgage Loans by Stated
Principal Balance.
(k) Notwithstanding anything herein or in the related Mortgage Loan
documents to the contrary, the Servicer or the Special Servicer may permit the
substitution of "government securities," within the meaning of Section 2(a)(16)
of the Investment Company Act of 1940, that comply with Treasury Regulations
Section 1.860G-2(a)(8) for any Mortgaged Property pursuant to the defeasance
provisions of any Mortgage Loan (or any portion thereof) in lieu of the
defeasance collateral specified in the related Mortgage Loan documents; provided
that the Servicer or the Special Servicer reasonably determines that allowing
their use would not cause a default or event of default to become reasonably
foreseeable and the Servicer or the Special Servicer receives an Opinion of
Counsel (at the expense of the Mortgagor to the extent permitted under the
Mortgage Loan documents) to the effect that such use would not be and would not
constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any REMIC and provided further that the
requirements set forth in Section 3.20(j) (including the ratings confirmations)
are satisfied; and further provided that such securities are backed by the full
faith and credit of the United States government, or the Servicer or the Special
Servicer shall obtain a written confirmation of each Rating Agency that the use
of such securities will not result in the downgrade, withdrawal or qualification
of the then current ratings of any Class of Certificates outstanding.
(l) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), which shall be
Eligible Accounts, into which all payments received by the Servicer from any
defeasance collateral substituted for any Mortgaged Property shall be deposited
and retained, and shall administer such Defeasance Accounts in accordance with
the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall
the Servicer permit such amounts to be maintained in the Defeasance Account for
a period in excess of 90 days, unless such amounts are reinvested by the
Servicer in "government securities," within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, that comply with Treasury Regulations
Section 1.860G-2(a)(8). To the extent not required or permitted to be placed in
a separate account, the Servicer shall deposit all payments received by it from
defeasance collateral substituted for any Mortgaged Property into the
Certificate Account and treat any such payments as payments made on the Mortgage
Loan in advance of its Due Date in accordance with clause (a)(i) of the
definition of Available Distribution Amount, and not as a prepayment of the
related Mortgage Loan. Notwithstanding anything herein to the contrary, in no
event shall the Servicer permit such amounts to be maintained in the Certificate
Account for a period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer or the Special Servicer, as
applicable, shall promptly give notice to the Servicer or the Special Servicer,
as applicable, and the Directing Certificateholder thereof, and the Servicer
shall deliver the related Mortgage File and Servicing File to the Special
Servicer and shall use its reasonable efforts to provide the Special Servicer
with all information, documents and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable, the related Companion Loan, either in the
Servicer's possession or otherwise available to the Servicer without undue
burden or expense, and reasonably requested by the Special Servicer to enable it
to assume its functions hereunder with respect thereto. The Servicer shall use
its reasonable efforts to comply with the preceding sentence within 5 Business
Days of the occurrence of each related Servicing Transfer Event and in any event
shall continue to act as Servicer and administrator of such Mortgage Loan until
the Special Servicer has commenced the servicing of such Mortgage Loan and, if
applicable, the related Companion Loan. The Servicer shall deliver to the
Trustee, the Paying Agent and the Directing Certificateholder (and in the case
of the One Post Office Square Whole Loan, the One Post Office Square
Representative) a copy of the notice of such Servicing Transfer Event provided
by the Servicer to the Special Servicer, or by the Special Servicer to the
Servicer, pursuant to this Section. The Paying Agent shall deliver to each
Controlling Class Certificateholder a copy of the notice of such Servicing
Transfer Event provided by the Servicer pursuant to this Section.
Upon determining that a Mortgage Loan or Companion Loan that is a
Specially Serviced Mortgage Loan (other than an REO Loan) has become current and
has remained current for three consecutive Monthly Payments (provided that (i)
no additional Servicing Transfer Event is foreseeable in the reasonable judgment
of the Special Servicer, and (ii) for such purposes taking into account any
modification or amendment of such Mortgage Loan and, if applicable, the
Companion Loan), and that no other Servicing Transfer Event is continuing with
respect thereto, the Special Servicer shall immediately give notice thereof to
the Servicer and the Directing Certificateholder (and in the case of the One
Post Office Square Whole Loan, the One Post Office Square Representative), and
shall return the related Mortgage File and Servicing File to the Servicer (or
copies thereof if copies only were delivered to the Special Servicer) and upon
giving such notice, and returning such Mortgage File and Servicing File to the
Servicer, the Special Servicer's obligation to service such Corrected Mortgage
Loan shall terminate and the obligations of the Servicer to service and
administer such Mortgage Loan and, if applicable, the Companion Loan, shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession with respect to such records to
enable the Special Servicer to perform its duties under this Agreement, provided
that this statement shall not be construed to require the Servicer to produce
any additional reports.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the Companion Loan, the Special Servicer shall
deliver to the Servicer, each Rating Agency, the Trustee, the Paying Agent and
the Directing Certificateholder, and with respect to the One Post Office Square
Whole Loan, the One Post Office Square Representative, a report (the "Asset
Status Report") with respect to such Mortgage Loan and the related Mortgaged
Property; provided, however, the Special Servicer shall not be required to
deliver an Asset Status Report to the Directing Certificateholder if they are
the same entity. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder, and with respect to the One Post Office Square
Whole Loan, the One Post Office Square Representative, does not disapprove such
Asset Status Report in writing, the Special Servicer shall implement the
recommended action as outlined in such Asset Status Report; provided, however,
that the Special Servicer may not take any action that is contrary to applicable
law, the Servicing Standards or the terms of the applicable Mortgage Loan
documents. If the Directing Certificateholder disapproves such Asset Status
Report within 10 Business Days of receipt, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies, the Mortgage Loan Sellers and the Servicer a new Asset Status Report
as soon as practicable, but in no event later than 30 days after such
disapproval. The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Directing Certificateholder
shall fail to disapprove such revised Asset Status Report in writing within ten
(10) Business Days of receiving such revised Asset Status Report or until the
Special Servicer makes one of the determinations described below.
Notwithstanding the foregoing, in the event the Directing Certificateholder and
the Special Servicer have been unable to agree upon an Asset Status Report with
respect to a Specially Serviced Mortgage Loan within 90 days (or 60 days with
respect to the One Post Office Square Whole Loan), of the Directing
Certificateholder's receipt of the initial Asset Status Report, the Special
Servicer, subject to the rights of the related Companion Holder pursuant to the
related AB Intercreditor Agreement, if applicable, shall implement the actions
described in the most recent Asset Status Report submitted to the Directing
Certificateholder by the Special Servicer. The Special Servicer may, from time
to time, modify any Asset Status Report it has previously delivered and
implement such report, provided such report shall have been prepared, reviewed
and not rejected pursuant to the terms of this Section. Notwithstanding the
foregoing, the Special Servicer (i) may, following the occurrence of an
extraordinary event with respect to the related Mortgaged Property, take any
action set forth in such Asset Status Report before the expiration of a ten (10)
Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders or, if a Loan Pair is involved, the Companion Holder,
and it has made a reasonable effort to contact the Directing Certificateholder
and (ii) in any case, shall determine whether such affirmative disapproval is
not in the best interest of all the Certificateholders pursuant to the Servicing
Standards.
Notwithstanding the foregoing, so long as the One Post Office Square
Representative is entitled to exercise the approval rights with respect to
recommended actions pursuant to Section 3.29 hereof, the Directing
Certificateholder shall not have any of the rights set forth under this Section
3.21 with respect to the One Post Square Whole Loan, and such rights shall be
exercised by the One Post Office Square Representative. Following the occurrence
and during the continuance of a One Post Office Square Control Appraisal Event,
the Directing Certificateholder shall exercise such rights in conjunction with
the holder of the One Post Office Square Companion Note (or the controlling
class of any One Post Office Square Companion Loan Securities, if applicable),
pursuant to the procedure set forth in the One Post Office Square Intercreditor
Agreement.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder (or with respect to
the One Post Office Square Whole Loan, the One Post Office Square
Representative) shall (a) require or cause the Special Servicer to violate the
terms of a Specially Serviced Mortgage Loan, applicable law or any provision of
this Agreement, including the Special Servicer's obligation to act in accordance
with the Servicing Standards and to maintain the REMIC status of each of the
Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC, or (b) result in the
imposition of a "prohibited transaction" or "prohibited contribution" tax under
the REMIC Provisions, or (c) expose the Servicer, the Special Servicer, the
Depositor, the Mortgage Loan Sellers, the Trust Fund, the Trustee, the Paying
Agent or their respective officers, directors, employees or agents to any claim,
suit or liability or (d) materially expand the scope of the Special Servicer's,
Trustee's or the Servicer's responsibilities under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan which is not a
Specially Serviced Mortgage Loan for which the Special Servicer is responsible
for such amendment or modification pursuant to Section 3.08 and Section 3.20,
the Servicer shall with reasonable promptness give notice thereof, and shall use
its reasonable efforts to provide the Special Servicer with all information
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to negotiate with the related Mortgagor and prepare for any such
proceedings. The Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer may enter into Sub-Servicing Agreements to provide
for the performance by third parties of any or all of its respective obligations
under Articles III and IV hereof; provided that the Sub-Servicing Agreement as
amended or modified: (i) is consistent with this Agreement in all material
respects and requires the Sub-Servicer to comply with all of the applicable
conditions of this Agreement; (ii) provides that if the Servicer shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee shall thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Servicer under such agreement, or,
alternatively, may act in accordance with Section 7.02 hereof under the
circumstances described therein (subject to Section 3.22(g) hereof); (iii)
provides that the Trustee for the benefit of the Certificateholders, the related
Companion Holder (if applicable) and the Trustee (as holder of the
Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests) shall
be a third party beneficiary under such Sub-Servicing Agreement, but that
(except to the extent the Trustee or its designee assumes the obligations of the
Servicer thereunder as contemplated by the immediately preceding clause (ii))
none of the Trust Fund, the Trustee, the Paying Agent any successor Servicer or
any Certificateholder (or the related Companion Holder, if applicable) shall
have any duties under such Sub-Servicing Agreement or any liabilities arising
therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to this
Agreement to terminate such Sub-Servicing Agreement with respect to such
purchased Mortgage Loan at its option and without penalty; provided, however,
that the Initial Sub-Servicing Agreements may only be terminated by the Trustee
or its designees as contemplated by Section 3.22(g) hereof and in such
additional manner as is provided in such Sub-Servicing Agreement; (v) does not
permit the Sub-Servicer any direct rights of indemnification that may be
satisfied out of assets of the Trust Fund and (vi) does not permit the
Sub-Servicer to modify any Mortgage Loan. Any successor Servicer hereunder
shall, upon becoming successor Servicer, be assigned and shall assume any
Sub-Servicing Agreements from the predecessor Servicer (subject to Section
3.22(g) hereof). In addition, each Sub-Servicing Agreement entered into by the
Servicer may but need not provide that the obligations of the Sub-Servicer
thereunder shall terminate with respect to any Mortgage Loan serviced thereunder
at the time such Mortgage Loan becomes a Specially Serviced Mortgage Loan;
provided, however, that the Sub-Servicing Agreement may provide (if the
Sub-Servicing Agreement provides for Advances by the Sub-Servicer, although it
need not so provide) that the Sub-Servicer will continue to make all Advances
and calculations and prepare all reports required under the Sub-Servicing
Agreement with respect to Specially Serviced Mortgage Loans and continue to
collect its Primary Servicing Fees as if no Servicing Transfer Event had
occurred and with respect to REO Properties (and the related REO Loans) as if no
REO Acquisition had occurred and to render such incidental services with respect
to such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for in such Sub-Servicing Agreement. The Servicer shall deliver to the
Trustee copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Servicer include actions taken or to be taken by a Sub-Servicer
on behalf of the Servicer; and, in connection therewith, all amounts advanced by
any Sub-Servicer (if the Sub-Servicing Agreement provides for Advances by the
Sub-Servicer, although it need not so provide) to satisfy the obligations of the
Servicer hereunder to make Advances shall be deemed to have been advanced by the
Servicer out of its own funds and, accordingly, in such event, such Advances
shall be recoverable by such Sub-Servicer in the same manner and out of the same
funds as if such Sub-Servicer were the Servicer, and, for so long as they are
outstanding, such Advances shall accrue interest in accordance with Section
3.03(d), such interest to be allocable between the Servicer and such
Sub-Servicer as may be provided (if at all) pursuant to the terms of the
Sub-Servicing Agreement. For purposes of this Agreement, the Servicer shall be
deemed to have received any payment when a Sub-Servicer retained by it receives
such payment. The Servicer shall notify the Special Servicer, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
Servicer's obligations under this Agreement.
(c) The Servicer shall have the right to remove a Sub-Servicer
retained by it in accordance with the terms of the related Sub-Servicing
Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall deliver to the
assuming party all documents and records relating to such Sub-Servicing
Agreement and the Mortgage Loans then being serviced thereunder and an
accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of its obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Servicer
shall pay the fees of any Sub-Servicer thereunder from its own funds. In no
event shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement with or without cause and without a fee. Notwithstanding the
foregoing, the Trustee and any successor Servicer shall assume each Initial
Sub-Servicing Agreement, but may terminate any such Initial Sub-Servicing
Agreement in accordance with its terms.
(h) The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to the related
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any sub-servicing agreement which provides
for the performance by third parties of any or all of its obligations herein.
Section 3.23 [RESERVED].
Section 3.24 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor,
the Paying Agent and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association, duly organized
and validly existing under the laws of the United States, and the Servicer
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to perform its obligations
under this Agreement;
(ii) The execution and delivery of this Agreement by the Servicer,
and the performance and compliance with the terms of this Agreement by the
Servicer, does not (A) violate the Servicer's organizational documents or
(B) constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party
or which is applicable to it or any of its assets, or (C) violate any law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or its financial condition;
(iii) The Servicer has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Special Servicer, the Paying Agent and the
Depositor, constitutes a valid, legal and binding obligation of the
Servicer, enforceable against the Servicer in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Servicer is not in default with respect to any law, any
order or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default, in the
Servicer's reasonable judgment is likely to materially and adversely
affect the financial condition or operations of the Servicer or its
properties taken as a whole or its ability to perform its duties and
obligations hereunder;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations under
this Agreement or the financial condition of the Servicer;
(vii) Any Sub-Servicing Agreements entered into by the Servicer will
comply with the provisions of Section 3.22;
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions of the Servicer
contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Servicer of its obligations under this
Agreement, or which, if not obtained would not have a materially adverse
effect on the ability of the Servicer to perform its obligations
hereunder; and
(ix) The Servicer has full power and authority to enter into and
consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents, warrants and covenants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
the Depositor, the Paying Agent and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Servicer, the Paying Agent and the Depositor,
constitutes a valid, legal and binding obligation of the Special Servicer,
enforceable against the Special Servicer in accordance with the terms
hereof, subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer to
perform its obligations hereunder; and
(ix) The Special Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. Such
indemnification shall survive any termination or resignation of the Special
Servicer, the termination or resignation of the Trustee and any termination of
the Agreement.
Section 3.26 Interest Reserve Account.
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December, the Paying Agent, in respect of the Actual/360 Mortgage Loans, shall
deposit into the Interest Reserve Account, an amount equal to one day's interest
on the Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance Date occurs
at the related Net Mortgage Rate, to the extent a full Monthly Payment or P&I
Advance is made in respect thereof (all amounts so deposited in any consecutive
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Paying Agent
shall withdraw, from the Interest Reserve Account an amount equal to the
Withheld Amounts from the preceding January (if applicable) and February, if
any, and deposit such amount into the Lower-Tier Distribution Account or, with
respect to the One Post Office Square B Note, the Loan REMIC Distribution
Account.
Section 3.27 Excess Interest Distribution Account.
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Paying Agent for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.28 Directing Certificateholder Contact with Servicer.
No less often than on a monthly basis, each of the Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
via telephone available to verbally answer questions from the Directing
Certificateholder regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which the Servicer or the Special Servicer, as the
case may be, is responsible.
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder.
(a) Each Controlling Class Certificateholder is hereby deemed to
have agreed by virtue of its purchase of a Certificate to provide its name and
address to the Paying Agent and to notify the Servicer, the Paying Agent, the
Trustee and Special Servicer of the transfer of any Certificate of a Controlling
Class, the selection of a Directing Certificateholder or the resignation or
removal thereof. The Directing Certificateholder is hereby deemed to have agreed
by virtue of its purchase of a Certificate to notify the Servicer, Special
Servicer, the Paying Agent and Trustee when such Certificateholder is appointed
Directing Certificateholder and when it is removed or resigns. To the extent
there is only one Controlling Class Certificateholder and it is also the Special
Servicer, it shall be the Directing Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Certificate Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee, the Paying Agent
and each other Certificateholder (or Certificate Owner, if applicable) shall be
entitled to rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Servicer, Special Servicer, the Paying Agent and Trustee
and each other Controlling Class Certificateholder, in writing, of the
resignation of such Directing Certificateholder or the selection of a new
Directing Certificateholder. Upon the resignation of a Directing
Certificateholder, the Paying Agent shall request the Controlling Class
Certificateholders to select a new Directing Certificateholder.
(d) [RESERVED].
(e) [RESERVED].
(f) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Controlling Class Certificateholder, and the
Directing Certificateholder.
(g) Upon request, the Paying Agent shall deliver to the Trustee, the
Special Servicer and the Servicer a list of each Controlling Class
Certificateholder and the Directing Certificateholder, including names and
addresses. In addition to the foregoing, within two (2) Business Days of
receiving notice of the selection of a new Directing Certificateholder or the
existence of a new Controlling Class Certificateholder, the Paying Agent shall
notify the Trustee, the Servicer and the Special Servicer. Notwithstanding the
foregoing, ARCap CMBS Fund REIT, Inc. shall be the initial Directing
Certificateholder and shall remain so until a successor is appointed pursuant to
the terms of this Agreement.
(h) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Paying Agent shall notify the related Certificateholders (through the
Depository) of such event and shall request that it be informed of any change in
the identity of the related Certificate Owner from time to time.
(i) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder, or
with respect to the One Post Office Square Whole Loan, the One Post Office
Square Representative, may have special relationships and interests that
conflict with those of Holders of one or more Classes of Certificates; (ii) the
Directing Certificateholder may act solely in the interests of the Holders of
the Controlling Class; (iii) the Directing Certificateholder does not have any
duties to the Holders of any Class of Certificates other than the Controlling
Class; (iv) the Directing Certificateholder may take actions that favor
interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other Classes of Certificates; and (v) the Directing
Certificateholder shall have no liability whatsoever for having so acted, and no
Certificateholder may take any action whatsoever against the Directing
Certificateholder or any director, officer, employee, agent or principal thereof
for having so acted.
(j) In the event the One Post Office Square Whole Loan becomes a
Specially Serviced Mortgage Loan, the Holders (or, in the case of Book-Entry
Certificates, the Certificate Owners) of the Class PS Certificates representing
more than 25% of the Certificate Balance of the most subordinate Class of such
Class PS Certificates (the "One Post Office Square Controlling Holder") shall be
entitled in accordance with this Section 3.29 to select a representative (the
"One Post Office Square Representative") having the rights and powers specified
in this Agreement or to replace an existing One Post Office Square
Representative. Solely for purposes of selecting or replacing a One Post Office
Square Representative, the Certificate Balances of the Class PS Certificates
will be reduced by any Appraisal Reductions with respect to the One Post Office
Square Whole Loan, in the following order of priority, first, to the Class PS-7
Certificates until its Certificate Balance has been reduced to zero, second, to
the Class PS-6 Certificates until its Certificate Balance has been reduced to
zero, third, to the Class PS-5 Certificates until its Certificate Balance has
been reduced to zero, fourth, to the Class PS-4 Certificates until its
Certificate Balance has been reduced to zero, fifth, to the Class PS-3
Certificates until its Certificate Balance has been reduced to zero, sixth, to
the Class PS-2 Certificates until its Certificate Balance has been reduced to
zero, and seventh, to the Class PS-1 Certificates until its Certificate Balance
has been reduced to zero. Upon (i) the receipt by the Paying Agent of written
requests for the selection of a One Post Office Square Representative from the
One Post Office Square Controlling Holder (or, in the case of Book-Entry
Certificates, the Certificate Owners), or (ii) the resignation or removal of the
Person acting as One Post Office Square Representative, the Paying Agent shall
promptly notify the Depositor and the Holders (and, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Paying Agent or identified thereto by the Depository or the Depository
Participants, the Certificate Owners) of the Class PS Certificates that they may
select a One Post Office Square Representative. Such notice shall set forth the
process for selecting a One Post Office Square Representative, which shall be
the designation of such One Post Office Square Representative by the One Post
Office Square Controlling Holder by a writing delivered to the Paying Agent. No
appointment of any Person as a One Post Office Square Representative shall be
effective until such Person provides the Paying Agent with written confirmation
of its acceptance of such appointment, an address and telecopy number for the
delivery of notices and other correspondence and a list of officers or employees
of such Person with whom the parties to this Agreement may deal (including their
names, titles, work addresses and telecopy numbers). Any One Post Office Square
Representative appointed hereunder shall be automatically removed in the event
that any Holder of the Class PS Certificates or an Affiliate of such Holder
becomes the One Post Office Square Whole Loan borrower under the One Post Office
Square Whole Loan. Except as otherwise agreed with the related Holders of the
Class PS Certificates, no One Post Office Square Representative shall owe any
fiduciary duty to the Paying Agent, the Servicer, the Special Servicer or any
Certificateholder.
(k) Within ten (10) Business Days (or as soon thereafter as
practicable if the Class PS Certificates are Book-Entry Certificates) of
receiving a request therefor from the Servicer or Special Servicer, the Paying
Agent shall deliver to the requesting party the identity of the One Post Office
Square Representative and a list of each Holder of the Class PS Certificates,
including, in each case, names and addresses. With respect to such information,
the Paying Agent shall be entitled to conclusively rely on information provided
to it by the Depository, and the Servicer and the Special Servicer shall be
entitled to rely on such information provided by the Paying Agent with respect
to any obligation or right hereunder that the Servicer and the Special Servicer
may have to deliver information or otherwise communicate with the One Post
Office Square Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Class PS Certificates. In addition to the foregoing,
within two (2) Business Days of the selection, resignation or removal of a One
Post Office Square Representative, the Paying Agent shall notify the other
parties to this Agreement of such event. The expenses incurred by the Paying
Agent in connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust Fund payable out of the Certificate Account pursuant to Section 3.05(a).
(l) A One Post Office Square Representative may at any time resign
as such by giving written notice to the Paying Agent and to each Holder (or, in
the case of Book-Entry Certificates, Certificate Owner) of the Class PS
Certificates. The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of all the Class PS Certificates shall be entitled to remove
any existing One Post Office Square Representative by giving written notice to
the Paying Agent and to such existing One Post Office Square Representative.
(m) Once a One Post Office Square Representative has been selected
pursuant to this Section 3.29, each of the parties to this Agreement and each
Holder (or Certificate Owner, if applicable) of the Class PS Certificates shall
be entitled to rely on such selection unless a majority of the Holders (or, in
the case of Book-Entry Certificates, the Certificate Owners) of the Class PS
Certificates, by aggregate Certificate Principal Balance, or the One Post Office
Square Representative, as applicable, shall have notified the Paying Agent and
each other Holder (or, in the case of Book-Entry Certificates, Certificate
Owner) of the Class PS Certificates, in writing, of the resignation or removal
of the One Post Office Square Representative.
(n) Any and all expenses of a One Post Office Square Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of the
Class PS Certificates, pro rata, according to their respective Percentage
Interests in such Classes, and not by the Trust. Notwithstanding the foregoing,
if a claim is made against a One Post Office Square Representative by a
Mortgagor with respect to this Agreement or the One Post Office Square Whole
Loan, such One Post Office Square Representative shall immediately notify the
Trustee, the Servicer, the Paying Agent and the Special Servicer, whereupon (if
the Special Servicer or the Trust Fund are also named parties to the same action
and, in the sole judgment of the Special Servicer, (i) such One Post Office
Square Representative had acted in good faith, without negligence or willful
misfeasance with regard to the particular matter, and (ii) there is no potential
for the Special Servicer or the Trust Fund to be an adverse party in such action
as regards such One Post Office Square Representative) the Special Servicer on
behalf of the Trust Fund shall, subject to Section 6.03, assume the defense of
any such claim against such One Post Office Square Representative. This
provision shall survive the termination of this Agreement and the termination or
resignation of such One Post Office Square Representative.
(o) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained in this Agreement shall also apply to each One
Post Office Square Representative with respect to information relating to the
One Post Office Square Whole Loan.
(p) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained in this Agreement shall also apply to each
Companion Holder with respect to information relating to the related AB Mortgage
Loan or the One Post Office Square Whole Loan, as applicable.
If a One Post Office Square Control Appraisal Event has occurred and
is continuing, then: (i) the One Post Office Square Representative shall not be
authorized to exercise any of its approval and consent rights in this Agreement
with respect to the One Post Office Square Whole Loan; and (ii) the Directing
Certificateholder shall exercise such rights in conjunction with the holder of
the One Post Office Square Companion Note (or the controlling class of any One
Post Office Square Companion Loan Securities, if applicable), pursuant to the
procedures set forth in the One Post Office Square Intercreditor Agreement and,
to the extent not inconsistent therewith, this Agreement with respect to the One
Post Office Square Whole Loan; provided, however, that the One Post Office
Square Representative shall nevertheless retain the right to receive
distributions, notices and reports under this Agreement.
Section 3.30 AB Intercreditor Agreements.
Each of the Servicer and Special Servicer acknowledges and agrees
that each Loan Pair being serviced under this Agreement is subject to the terms
and provisions of the related AB Intercreditor Agreement and each agrees to
service each Loan Pair in accordance with the related AB Intercreditor Agreement
and this Agreement, including, without limitation, effecting distributions and
allocating reimbursement of expenses in accordance with the related AB
Intercreditor Agreement. Notwithstanding anything contrary in this Agreement,
each of the Servicer and Special Servicer agrees not to take any action with
respect to a Loan Pair or the related Mortgaged Property without the prior
consent of the related Companion Holder to the extent that the related AB
Intercreditor Agreement provides that such Companion Holder is required to
consent to such action. Each of the Servicer and Special Servicer acknowledges
and agrees that each Companion Holder has the right to cure certain defaults
with respect to the related AB Mortgage Loan or the One Post Office Square Whole
Loan, as applicable, and to purchase the related AB Mortgage Loan or the One
Post Office Square Whole Loan, as applicable, in each case pursuant to the terms
and conditions of the related AB Intercreditor Agreement.
Neither the Servicer nor the Special Servicer shall have any
liability for any cost, claim or damage that arises from any entitlement in
favor of a Companion Holder under the related AB Intercreditor Agreement or
conflict between the terms of this Agreement and the terms of such AB
Intercreditor Agreement. Notwithstanding any provision of any AB Intercreditor
Agreement that may otherwise require the Servicer or the Special Servicer to
abide by any instruction or direction of a Companion Holder, neither the
Servicer nor the Special Servicer shall be required to comply with any
instruction or direction the compliance with which requires an Advance that
constitutes or would constitute a Nonrecoverable Advance. In no event shall any
expense arising from compliance with an AB Intercreditor Agreement constitute an
expense to be borne by the Servicer or Special Servicer for its own account
without reimbursement. In no event shall the Servicer or the Special Servicer be
required to consult with or obtain the consent of any Companion Holder unless
such Companion Holder has delivered notice of its identity and contact
information to each of the parties to this Agreement (upon which notice each of
the parties to this Agreement shall be conclusively entitled to rely).
Section 3.31 Companion Paying Agent.
(a) The Servicer shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Servicer pursuant to
Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.32 Companion Register.
The Companion Paying Agent shall maintain a register (the "Companion
Register") on which it will record the names and address of, and wire transfer
instructions for, the Companion Holders from time to time, to the extent such
information is provided in writing to it by each Companion Holder. The initial
Companion Holders, along with their respective name, address, wiring
instructions and tax identification number, is listed on Exhibit U hereto. In
the event a Companion Holder transfers a Companion Loan without notice to the
Companion Paying, the Companion Paying Agent shall have no liability for any
misdirected payment in the related Companion Loan and shall have no obligation
to recover and redirect such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Paying Agent shall be deemed
to transfer the Lower-Tier Regular Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each Class of
Uncertificated Lower-Tier Interests (other than the Uncertificated Class PS
Lower-Tier Interests), and immediately thereafter, shall make distributions
thereof from the Upper-Tier Distribution Account in the following order of
priority, satisfying in full, to the extent required and possible, each priority
before making any distribution with respect to any succeeding priority:
(i) first, concurrently (A) to the Holders of the Class A-1
Certificates and the Class A-2 Certificates, pro rata, (based upon their
respective entitlements to interest for such Distribution Date), in
respect of interest, from the Loan Group 1 Available Distribution Amount
and up to an amount equal to the aggregate Interest Distribution Amount in
respect of such Classes of Certificates for such Distribution Date, (B) to
the Holders of the Class A-1A Certificates, in respect of interest, from
the Loan Group 2 Available Distribution Amount and up to an amount equal
to the aggregate Interest Distribution Amount in respect of such Class of
Certificates for such Distribution Date and (C) to the Holders of the
Class X-1 and Class X-2 Certificates, in respect of interest, up to an
amount equal to the Interest Distribution Amount payable in respect of
such Classes of Certificates for such Distribution Date; provided,
however, that if the Loan Group 1 Available Distribution Amount and/or the
Loan Group 2 Available Distribution Amount is insufficient to pay in full
the Interest Distribution Amount provided above, payable in respect of any
Class A or Class X Certificates on such Distribution Date, then the entire
Available Distribution Amount shall be applied to make distributions of
interest to the Holders of the respective Classes of the Class A and Class
X Certificates, up to an amount equal to, and pro rata as among such
Classes in accordance with, the Interest Distribution Amount in respect of
each such Class of Certificates for such Distribution Date;
(ii) second, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates and the Class A-1A Certificates in reduction of the
Certificate Balances thereof: (A)(1) to the Holders of the Class A-1
Certificates, in an amount equal to the Loan Group 1 Principal
Distribution Amount and, after the outstanding Certificate Balance of the
Class A-1A Certificates has been reduced to zero, the Loan Group 2
Principal Distribution Amount remaining after payments to the Holders of
the Class A-1A Certificates have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-1 Certificates
has been reduced to zero, and then (2) to the holders of the Class A-2
Certificates, in an amount up to the Loan Group 1 Principal Distribution
Amount and, after the outstanding Certificate Balances of the Class A-1A
Certificates have been reduced to zero, the Loan Group 2 Principal
Distribution Amount remaining after payments to the Holders of the Class
A-1A and Class A-1 Certificates have been made on such Distribution Date,
until the outstanding Certificate Balance of the Class A-2 Certificates
has been reduced to zero; and (B) to the Holders of the Class A-1A
Certificates, in an amount up to the Loan Group 2 Principal Distribution
Amount and, after the Certificate Balance of the Class A-2 Certificates
has been reduced to zero, the Loan Group 1 Principal Distribution Amount
remaining after payments to the Holders of the Class A-1 and Class A-2
Certificates have been made on such Distribution Date, until the
Certificate Balance of the Class A-1A Certificates has been reduced to
zero;
(iii) third, to the Holders of the Class A-1, Class A-2 and Class
A-1A Certificates, pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class B Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class B
Certificates, but not previously reimbursed, have been reimbursed in full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A and Class B
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class C
Certificates, but not previously reimbursed, have been reimbursed in full;
(x) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
B and Class C Certificates have been reduced to zero, to the Holders of
the Class D Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A, Class
B and Class C Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class D Certificates has been
reduced to zero;
(xii) twelfth, to the Holders of the Class D Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class D
Certificates, but not previously reimbursed, have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C and Class D Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class E
Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class E Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class E Certificates, but not previously reimbursed, have been reimbursed
in full;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D and Class E Certificates
on such Distribution Date), until the outstanding Certificate Balance of
the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to the Holders of the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A, Class B, Class C, Class D, Class E and Class F
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxii) twenty-second, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C, Class D, Class
E, Class F and Class G Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class H Certificates has been
reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G and Class H Certificates on
such Distribution Date), until the outstanding Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of the Class J Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class J Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxviii) twenty-eighth, to the Holders of the Class K Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of the Class K Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class K Certificates, but not previously reimbursed, have been reimbursed
in full;
(xxxi) thirty-first, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates have been reduced to zero, to the Holders of the
Class L Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class K
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class L Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of the Class L Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class L Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxiv) thirty-fourth, to the Holders of the Class M Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates have been reduced to zero, to the Holders
of the Class M Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class M Certificates has been
reduced to zero;
(xxxvi) thirty-sixth, to the Holders of the Class M Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class M Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxxvii) thirty-seventh, to the Holders of the Class N Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L and Class M Certificates have been reduced to zero, to
the Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K, Class L and Class M Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class N
Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of the Class N Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class N Certificates, but not previously reimbursed, have been
reimbursed in full;
(xl) fortieth, to the Holders of the Class P Certificates in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xli) forty-first, after the Certificate Balances of 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 have been reduced to
zero, to the Holders of the Class P Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of 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
on such Distribution Date), until the outstanding Certificate Balance of
the Class P Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class P Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class P Certificates, but not previously reimbursed, have been
reimbursed in full;
(xliii) forty-third, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xliv) forty-forth, after the Certificate Balances of 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, Class N and Class P Certificates have been
reduced to zero, to the Holders of the Class NR Certificates, in reduction
of the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of 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, Class N
and Class P Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class NR Certificates has been reduced to zero;
(xlv) forty-fifth, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xlvi) forty-sixth, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
If, in connection with any Distribution Date, the Paying Agent has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional Monthly Payments,
balloon payments or unscheduled principal payments are subsequently received by
the Servicer and required to be part of the Available Distribution Amount for
such Distribution Date, the Servicer shall promptly notify the Paying Agent and
the Paying Agent will use commercially reasonable efforts to cause DTC to make
the revised distribution on a timely basis on such Distribution Date. Neither
the Servicer, the Special Servicer nor the Paying Agent shall be liable or held
responsible for any resulting delay in the making of such distribution to
Certificateholders solely on the basis of the actions described in the preceding
sentence.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of principal or
reimbursement of Collateral Support Deficit or the One Post Office Square B Note
Support Deficit, as applicable, in an amount equal to the amount of principal or
reimbursement of Collateral Support Deficit or the One Post Office Square B Note
Support Deficit, as applicable, actually distributable to its respective Related
Certificates as provided in Sections 4.01(a) and 4.01(c) and (d) (in the case of
(i) the Class A-1 Certificates, first to the Class LA-1-1 Uncertificated
Interest, second, to the Class LA-1-2 Uncertificated Interest, third, to the
Class LA-1-3 Uncertificated Interest, fourth, to the Class LA-1-4 Uncertificated
Interest, fifth, to the Class LA-1-5 Uncertificated Interest and sixth, to the
Class LA-1-6 Uncertificated Interest, in each case, until reduced to zero, (ii)
the Class A-1A Certificates, first to the Class LA-1A-1 Uncertificated Interest,
second, to the Class LA-1A-2 Uncertificated Interest, third, to the Class
LA-1A-3 Uncertificated Interest, fourth, to the Class LA-1A-4 Uncertificated
Interest, fifth, to the Class LA-1A-5 Uncertificated Interest, sixth, to the
Class LA-1A-6 Uncertificated Interest, seventh, to the Class LA-1A-7
Uncertificated Interest and eighth, to the Class LA-1A-8 Uncertificated
Interest, in each case, until reduced to zero, (iii) the Class A-2 Certificates,
first to the Class LA-2-1 Uncertificated Interest, second to the Class LA-2-2
Uncertificated Interest and third, to the Class LA-2-3 Uncertificated Interest,
in each case, until reduced to zero, (iv) the Class F Certificates, first to the
Class LF-1 Uncertificated Interest, and then to the Class LF-2 Uncertificated
Interest, in each case, until reduced to zero, (v) the Class G Certificates,
first to the Class LG-1 Uncertificated Interest and second to the Class LG-2
Uncertificated Interest, in each case, until reduced to zero, (vi) the Class H
Certificates, first to the Class LH-1 Uncertificated Interest and second to the
Class LH-2 Uncertificated Interest, in each case, until reduced to zero and
(vii) the Class L Certificates, first to the Class LL-1 Uncertificated Interest
and second to the Class LL-2 Uncertificated Interest, in each case, until
reduced to zero). On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions in respect of interest in an
amount equal to the Interest Distribution Amount in respect of its Related
Certificates (in the case of each of (i) the Class LA-1-1, Class LA-1-2, Class
LA-1-3, Class LA-1-4, Class LA-1-5 and Class LA-1-6 Uncertificated Interests,
(ii) the Class LA-1A-1, Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class
LA-1A-5, Class LA-1A-6, Class LA-1A-7 and Class LA-1A-8 Uncertificated Interests
(iii) the Class LA-2-1, Class LA-2-2 and Class LA-2-3 Uncertificated Interests,
(iv) the Class LF-1 and Class LF-2 Uncertificated Interests, (v) the Class LG-1
and Class LG-2 Uncertificated Interests (vi) the Class LH-1 and Class LH-2
Uncertificated Interests and (vii) the Class LL-1 and LL-2 Uncertificated
Interests, pro rata, based on their respective Certificate Balances) and its
related Component of the Class X-1 Certificates and Class X-2 Certificates, in
each case to the extent actually distributable thereon as provided in Section
4.01(a). For this purpose, interest distributed on the Class X-1 Certificates
and Class X-2 Certificates shall be treated as having been paid to their
respective Components, pro rata, based on the interest accrued with respect
thereto at its Class X-1 Strip Rate or Class X-2 Strip Rate. Such amounts
distributed to the Uncertificated Lower-Tier Interests (other than the
Uncertificated Class PS Lower-Tier Interests) in respect of principal and
interest with respect to any Distribution Date are referred to herein
collectively as the "Lower-Tier Regular Distribution Amount," and shall be made
by the Paying Agent by deeming such Lower-Tier Regular Distribution Amount to be
deposited in the Upper-Tier Distribution Account. Such amounts distributed to
the Uncertificated Class PS Lower-Tier Interests in respect of principal and
interest with respect to any Distribution Date are referred to herein
collectively as the "Lower-Tier PS Distribution Amount," and shall be made by
the Paying Agent by deeming such Lower-Tier PS Distribution Amount to be
received from the Loan REMIC and deposited in the Lower-Tier Distribution
Account, and withdrawn from the Lower-Tier REMIC to be deposited in the
Upper-Tier Distribution Account. The Lower-Tier PS Distribution Amount shall be
deemed distributed to the Uncertificated Class PS Lower-Tier Interests at the
same time and in the same amounts as their Related Certificates, and set forth
in Section 4.01(d).
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) the Class LA-1-1,
Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5 and Class LA-1-6
Uncertificated Interests, the Class A-1 Certificates, (ii) the Class LA-1A-1,
Class LA-1A-2, Class LA-1A-3, Class LA-1A-4, Class LA-1A-5, Class LA-1A-6, Class
LA-1A-7 and Class LA-1A-8 Uncertificated Interests, the Class A-1A Certificates,
(iii) the Class LA-2-1, Class LA-2-2 and Class LA-2-3 Uncertificated Interests,
the Class A-2 Certificates, (iv) the Class LF-1 and Class LF-2 Uncertificated
Interests, the Class F Certificates, (v) the Class LG-1 and Class LG-2
Uncertificated Interests, the Class G Certificates, (vi) the Class LH-1 and
Class LH-2 Uncertificated Interests, the Class H Certificates and (vii) the
Class LL-1 and Class LL-2 Uncertificated Interests, the Class L Certificates),
as adjusted for the allocation of Collateral Support Deficits or One Post Office
Square B Note Collateral Support Deficit, as applicable, as provided in Sections
4.04(b), 4.04(c) and 4.04(d) and of Certificate Deferred Interest as provided in
Section 4.06. The initial principal balance of each Uncertificated Lower-Tier
Interest equals the respective Original Lower-Tier Principal Amount. The
pass-through rate with respect to each Uncertificated Lower-Tier Interest will
be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding the priorities set forth in clause (a) above, on
and after the Distribution Date on which the Certificate Balances of the
Subordinate Certificates have all been reduced to zero (without regard to any
amounts of Collateral Support Deficit remaining unreimbursed), the Principal
Distribution Amount will be distributed, pro rata (based upon Certificate
Balances), among the Class A-1, Class A-1A and Class A-2 Certificates without
regard to the priorities set forth in Section 4.01(a)(ii).
(d) On each Distribution Date, to the extent of the One Post Office
Square B Note Available Distribution Amount for such Distribution Date, the
Paying Agent shall be deemed to transfer the Lower-Tier PS Distribution Amount
from the Lower-Tier Distribution Account to the Upper-Tier Distribution Account
in the amounts and priorities set forth in Section 4.01(b) with respect to each
Class of Uncertificated Class PS Lower-Tier Interests, and immediately
thereafter, shall make distributions thereof from the Upper-Tier Distribution
Account in the following order of priority, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to any succeeding priority:
(i) first, to the Holders of the Class PS-1 Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(ii) second, to the Holders of the Class PS-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the One
Post Office Square Principal Distribution Amount, until the outstanding
Certificate Balance of the Class PS-1 Certificates has been reduced to
zero;
(iii) third, to the Holders of the Class PS-1 Certificates, until
all amounts of One Post Office Square B Note Support Deficit previously
allocated to the Class PS-1 Certificates, but not previously reimbursed,
have been reimbursed in full;
(iv) fourth, to the Holders of the Class PS-2 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, after the Certificate Balance of the Class PS-1
Certificates have been reduced to zero, to the Holders of the Class PS-2
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-2 Certificates has been reduced to zero;
(vi) sixth, to the Holders of the Class PS-2 Certificates, until all
amounts of One Post Office Square B Note Support Deficit previously
allocated to the Class PS-2 Certificates, but not previously reimbursed,
have been reimbursed in full;
(vii) seventh, to the Holders of the Class PS-3 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balance of the Class PS-2
Certificates have been reduced to zero, to the Holders of the Class PS-3
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-3 Certificates has been reduced to zero;
(ix) ninth, to the Holders of the Class PS-3 Certificates, until all
amounts of One Post Office Square B Note Support Deficit previously
allocated to the Class PS-3 Certificates, but not previously reimbursed,
have been reimbursed in full;
(x) tenth, to the Holders of the Class PS-4 Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balance of the Class PS-3
Certificates have been reduced to zero, to the Holders of the Class PS-4
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-4 Certificates has been reduced to zero;
(xii) twelfth, to the Holders of the Class PS-4 Certificates, until
all amounts of One Post Office Square B Note Support Deficit previously
allocated to the Class PS-4 Certificates, but not previously reimbursed,
have been reimbursed in full;
(xiii) thirteenth, to the Holders of the Class PS-5 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balance of the Class PS-4
Certificates have been reduced to zero, to the Holders of the Class PS-5
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-5 Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of the Class PS-5 Certificates, until
all amounts of One Post Office Square B Note Support Deficit previously
allocated to the Class PS-5 Certificates, but not previously reimbursed,
have been reimbursed in full;
(xvi) sixteenth, to the Holders of the Class PS-6 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balance of the Class PS-5
Certificates have been reduced to zero, to the Holders of the Class PS-6
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-6 Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of the Class PS-6 Certificates,
until all amounts of One Post Office Square B Note Support Deficit
previously allocated to the Class PS-6 Certificates, but not previously
reimbursed, have been reimbursed in full;
(xix) nineteenth, to the Holders of the Class PS-7 Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balance of the Class PS-6
Certificates have been reduced to zero, to the Holders of the Class PS-7
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the remaining One Post Office Square B Note Principal
Distribution Amount, until the outstanding Certificate Balance of the
Class PS-7 Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of the Class PS-7 Certificates,
until all amounts of One Post Office Square B Note Support Deficit
previously allocated to the Class PS-7 Certificates, but not previously
reimbursed, have been reimbursed in full; and
(xxii) twenty-second, to the Holders of the Class R Certificates,
the amount, if any, of the One Post Office Square B Note Available
Distribution Amount remaining in the Upper-Tier Distribution Account with
respect to such Distribution Date.
(e) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Paying Agent to the following Classes: to the
Class A-1 Certificates, Class A-2 Certificates, Class A-1A Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates and Class H Certificates, with
respect to the related Loan Group on each Distribution Date, in an amount equal
to the product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator is the
total amount distributed as principal to the Class A-1 Certificates, Class A-2
Certificates, Class A-1A 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 P Certificates and Class NR Certificates on such Distribution Date, (b)
the Base Interest Fraction for the related principal payment on such Class of
Certificates, and (c) the aggregate amount of Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected on such principal
prepayments during the related Due Period. If more than one such Class of
Certificates is entitled to distributions of principal with respect to the
related Loan Group on any particular Distribution Date on which Yield
Maintenance Charges are distributable, the aggregate amount of such Yield
Maintenance Charges will be allocated among all such Classes up to, and on a pro
rata basis in accordance with, their respective entitlements thereto in
accordance with this Section 4.01(e)(i). Any Yield Maintenance Charge collected
during the related Due Period remaining after such distributions will be
distributed to the holders of the Class X-1 Certificates. Any Yield Maintenance
Charge collected during the related Due Period remaining after such
distributions will be distributed to the holders of the Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class J, Class K, Class L, Class M, Class N, Class P, Class NR,
Class PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5, Class PS-6,
Class PS-7 or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class A-1A Certificates,
Class B Certificates, Class C Certificates, Class D Certificates, Class E
and Class F Certificates, Class G Certificates and Class H Certificates
have been reduced to zero, all Yield Maintenance Charges with respect to
the Mortgage Loans shall be distributed to the holders of the Class X-1
Certificates.
(iii) All distributions of Yield Maintenance Charges collected
during the related Due Period that represent Yield Maintenance Charges
actually collected on the One Post Office Square B Note shall be deemed to
be distributed from the Loan REMIC to the Lower-Tier REMIC in respect of
the Loan REMIC Regular Interests, pro rata, based upon the amount of
principal distributed in respect of each such Class of Loan REMIC Regular
Interests for such Distribution Date pursuant to this Section 4.01(e). All
distributions of Yield Maintenance Charges made in respect of the
respective Classes of Regular Certificates on each Distribution Date
pursuant to Section 4.01(e)(i) shall first be deemed to be distributed
from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the
Uncertificated Lower-Tier Interests (other than the Class LPS-1, Class
LPS-2, Class LPS-3, Class LPS-4, Class LPS-5, Class LPS-6 and Class LPS-7
Uncertificated Interests), pro rata based upon the amount of principal
distributed in respect of each such Class of Uncertificated Lower-Tier
Interests for such Distribution Date pursuant to Section 4.01(b) above.
(f) On each Distribution Date, the Paying Agent shall withdraw
amounts from the Gain-on-Sale Reserve Account and shall distribute such amounts
to reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. Any amount in the
Gain-on-Sale Reserve Account with respect to the One Post Office Square B Note
shall be applied to the One Post Office Square B Note Support Deficits in
respect of the Class PS Certificates (in order of numerical Class designation),
and any remaining amount thereof shall be deemed distributed in respect of the
Loan REMIC Residual Interest and immediately contributed to the Lower-Tier REMIC
to the portion of the Gain-on-Sale Reserve Account held therein and applied as
described in the preceding sentence. Amounts paid from the Gain-on-Sale Reserve
Account will not reduce the Certificate Balances of the Classes receiving such
distributions. Any amounts remaining in the Gain-on-Sale Reserve Account after
such distributions shall be applied to offset future Collateral Support Deficits
and related Collateral Support Deficits and upon termination of the Trust Fund,
any amounts remaining in the Gain-on-Sale Reserve Account shall be distributed
to the Class LR Certificateholders.
(g) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(h),
4.01(i) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to such Certificateholder at its address in the Certificate Registrar. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor, the Servicer, the Special Servicer, the
Paying Agent or the Underwriters shall have any responsibility therefor except
as otherwise provided by this Agreement or applicable law.
(h) Except as otherwise provided in Section 9.01, whenever the
Paying Agent expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
shall, no later than the related P&I Advance Determination Date, mail to each
Holder on such date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such Distribution
Date but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(h) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee or the Paying Agent as a result of
such Certificateholder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(h).
(i) Distributions in reimbursement of Collateral Support Deficit or
One Post Office Square B Note Collateral Support Deficit previously allocated to
the Regular Certificates or Class PS Certificates shall be made in the amounts
and manner specified in Section 4.01(a) or Section 4.01(d), as applicable, to
the Holders of the respective Class otherwise entitled to distributions of
interest and principal on such Class on the relevant Distribution Date; provided
that all distributions in reimbursement of Collateral Support Deficit or One
Post Office Square B Note Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Paying Agent shall attempt to contact such prior Holder in
the manner contemplated by Section 4.01(h) as if such Holder had failed to
surrender its Certificates.
(j) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class NR Certificates from the Excess Interest
Distribution Account.
(k) All distributions made in respect of any Class of Class PS
Certificates on each Distribution Date pursuant to Section 4.01(d) or Section
9.01 shall be deemed to have first been distributed from the Related
Uncertificated Lower-Tier Interests and Related Loan REMIC Regular Interests. In
each case, if such distribution on any such Class of the Class PS Certificates
was a distribution of interest or principal or in reimbursement of previously
allocated One Post Office Square B Note Collateral Support Deficit in respect of
such Class of Class PS Certificates, then the corresponding distribution deemed
to be first made on a Related Loan REMIC Regular Interest and then on the
Related Uncertificated Lower-Tier Interest pursuant to the preceding sentence
shall be deemed to also be a distribution of interest or principal or in
reimbursement of previously allocated One Post Office Square B Note Collateral
Support Deficits, as the case may be, in respect of the Related Uncertificated
Lower-Tier Interests and Related Loan REMIC Regular Interests.
(l) On each Distribution Date, the Companion Paying Agent (based
upon a statement of the Servicer to be delivered to the Paying Agent and the
Companion Paying Agent that specifies the amount required to be deposited in the
Companion Distribution Account and any amounts payable to the Servicer from the
Companion Distribution Account pursuant to this Section 4.01(l)) shall make
withdrawals and payments from the Companion Distribution Account for the related
Companion Loans in the following order of priority:
(i) to pay the Trustee, the Paying Agent or any of their directors,
officers, employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05, to the extent
any such amounts relate solely to a Loan Pair;
(ii) to pay to the Servicer any amounts deposited by the Servicer in
the Companion Distribution Account not required to be deposited therein;
(iii) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the Companion Holder; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
(a) On each Distribution Date, the Paying Agent shall make available
to the general public a statement (substantially in the form set forth as
Exhibit G hereto and based on the information supplied to the Paying Agent in
the related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") which shall include:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made, with respect to the
pool of Mortgage Loans and with respect to each Loan Group, during the
period from but not including the previous Distribution Date to and
including such Distribution Date and a detailed report of P&I Advances as
of the Determination Date together with details of P&I Advances as of the
P&I Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
the Paying Agent and servicing compensation paid to the Servicer and the
Special Servicer with respect to the Due Period for such Determination
Date together with detailed calculations of servicing compensation paid to
Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans, with respect to the pool of Mortgage Loans and with respect
to each Loan Group, outstanding immediately before and immediately after
such Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans, with respect to the pool of Mortgage Loans and
with respect to each Loan Group, as of the end of the related Due Period
for such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Determination Date for such Distribution Date,
based on the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date, with
respect to the pool of Mortgage Loans and with respect to each Loan Group;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit or One Post
Office Square B Note Support Deficit on such Distribution Date and the
aggregate amount of all reductions as a result of allocations of
Collateral Support Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
and Class PS Certificates immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a), (b) and
(d);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit or One Post Office Square B Note
Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date,
with respect to the pool of Mortgage Loans and with respect to each Loan
Group;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit or One
Post Office Square B Note Support Deficit in connection with such
Liquidation Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate amount of interest on P&I Advances paid to the
Servicer and the Trustee since the previous Determination Date (or in the
case of the first Distribution Date, as of the Cut-off Date), with respect
to the pool of Mortgage Loans and with respect to each Loan Group;
(xxviii) the aggregate amount of interest on Servicing Advances paid
to the Servicer, the Special Servicer and the Trustee since the previous
Determination Date (or in the case of the first Distribution Date, as of
the Cut-off Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Paying Agent shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Paying Agent deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Paying Agent
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Code as from time to time are in force.
On each Distribution Date, the Paying Agent shall make available to
the general public via its website initially located at "xxx.xxxxxxxx.xxx" (i)
the related Statement to Certificateholders, (ii) the CMSA Loan Periodic Update
File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA Collateral
Summary File, the CMSA Property File and (iii) as a convenience to the general
public (and not in furtherance of the distribution thereof under the securities
laws), the prospectus supplement, the prospectus, and this agreement.
The Paying Agent shall make available the Statement to
Certificateholders through its home page on the Internet. The Paying Agent
hereby acknowledges and agrees that its home page as of the date hereof is
located at "xxx.xxxxxxxx.xxx" on the world wide web. In addition, if the
Depositor so directs the Paying Agent, and on terms acceptable to the Paying
Agent, the Paying Agent shall make certain other information and reports related
to the Mortgage Loans available through its internet website.
In addition, on each Distribution Date, the Paying Agent shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" eight supplemental reports and the CMSA Operating Statement Analysis
Report and CMSA NOI Adjusted Worksheets and 7 CMSA Data Files to the extent
delivered by the Servicer pursuant to this Agreement and the Trustee's Exception
Report as updated from time to time to the extent delivered to the Paying Agent.
The Paying Agent makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Paying Agent may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Paying Agent's Internet
website, the Paying Agent may require registration and the acceptance of a
disclaimer. The Paying Agent shall not be liable for the dissemination of
information in accordance herewith. Questions regarding the Paying Agent's
Internet website can be directed to the Paying Agent's CMBS customer service
desk at (000) 000-0000.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or Internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Servicer's Internet website, the
Servicer shall take reasonable measures to ensure that only such parties listed
above may access such information including, without limitation, requiring
registration, a confidentiality agreement and acceptance of a disclaimer. The
Servicer shall not be liable for dissemination of this information in accordance
with this Agreement, provided that such information otherwise meets the
requirements set forth herein with respect to the form and substance of such
information or reports. The Servicer shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Servicer may, at its sole
cost and expense, make available by electronic media, bulletin board service or
Internet website any reports or other information the Servicer is required or
permitted to provide to any Mortgagor with respect to such Mortgagor's Mortgage
Loan to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Paying
Agent. Neither the Paying Agent nor the Depositor shall have any obligation to
recompute, verify or recalculate the information provided thereto by the
Servicer. Unless the Paying Agent has actual knowledge that any report or file
received from the Servicer contains erroneous information, the Paying Agent is
authorized to rely thereon in calculating and making distributions to
Certificateholders in accordance with Section 4.01, preparing the statements to
Certificateholders required by Section 4.02(a) and allocating Collateral Support
Deficit to the Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the Special Servicer, as the case may be, would
violate any applicable law or any provision of a Mortgage Loan document
prohibiting disclosure of information with respect to the Mortgage Loans or the
Mortgaged Properties. The Servicer or the Special Servicer may affix to any
information provided by it any disclaimer it deems appropriate in its reasonable
discretion (without suggesting liability on the part of any other party hereto).
(c) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Paying Agent shall provide the
requesting Certificateholder with such information that is in the Paying Agent's
possession or can reasonably be obtained by the Paying Agent as is requested by
such Certificateholder, for purposes of satisfying applicable reporting
requirements under Rule 144A under the Securities Act. Neither the Certificate
Registrar, the Paying Agent nor the Trustee shall have any responsibility for
the sufficiency under Rule 144A or any other securities laws of any available
information so furnished to any person including any prospective purchaser of a
Certificate or any interest therein, nor for the content or accuracy of any
information so furnished which was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Paying Agent, the Servicer and the Special Servicer
shall reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Paying Agent
shall prepare on behalf of 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, and the Paying Agent shall
sign and file (via the Securities and Exchange Commission's Electronic Data
Gathering and Retrieval System) such Forms on behalf of the Depositor. The
Depositor hereby grants to the Paying Agent a limited power of attorney to
execute and file each such documents on behalf of the Depositor. Such power of
attorney shall continue until the earlier of either (i) receipt by the Paying
Agent from the Depositor of written termination of such power of attorney and
(ii) the termination of the Trust. Notwithstanding the foregoing, in the event
that the Securities and Exchange Commission does not accept a certification
signed by the Depositor where the related Form 10-K is signed by the Paying
Agent on behalf of the Depositor, the Paying Agent should prepare such Form 10-K
to be signed by the Depositor and the Depositor shall sign such form.
(ii) Each Form 8-K shall be filed by the Paying Agent within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Paying Agent shall file a Form 10-K, in substance as
required by applicable law or applicable Securities and Exchange
Commission staff's interpretations. Such Form 10-K shall include as
exhibits the Servicer's and the Special Servicer's annual statement of
compliance described under Section 3.13 and the accountant's report
described under Section 3.14, in each case to the extent they have been
timely delivered to the Paying Agent. If they are not so timely delivered,
the Paying Agent shall file an amended Form 10-K including such documents
as exhibits reasonably promptly after they are delivered to the Paying
Agent. The Paying Agent shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from
or relating to the Paying Agent's inability or failure to obtain any
information not resulting from its own negligence, willful misconduct or
bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit S (the "Certification") (or in such other form
as required by the Rules and Regulations of the Securities and Exchange
Commission), which shall be signed by the senior officer of the Depositor
in charge of securitization.
(iii) The Paying Agent shall sign a certification (in the form
attached hereto as Exhibit T-1) for the benefit of the Depositor and its
officers, directors and Affiliates (provided, however, that the Paying
Agent shall not undertake an analysis of the accountant's report attached
as an exhibit to the Form 10-K), the Servicer shall sign a certification
(in the form attached hereto as Exhibit T-2) and the Special Servicer
shall sign a certification (in the form attached hereto as Exhibit T-3),
in each case, for the benefit of the Depositor, the Paying Agent and their
officers, directors and Affiliates. Each such certification shall be
delivered to the Depositor and the Paying Agent by March 15th of each year
(or if not a Business Day, the immediately preceding Business Day). The
Certification attached hereto as Exhibit S shall be delivered by the
Depositor to the Paying Agent for filing by March 20th of each year (or if
not a Business Day, the immediately preceding Business Day). In addition,
(i) the Paying Agent shall indemnify and hold harmless the Depositor and
its officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or based upon a breach of the Paying Agent's obligations under this
Section 4.02(e) or the Paying Agent's negligence, bad faith or willful
misconduct in connection therewith, and (ii) the Servicer and Special
Servicer shall each severally and not jointly indemnify and hold harmless
the Depositor, the Paying Agent and their respective officers, directors
and Affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Servicer's or Special Servicer's obligations of the Servicer
or the Special Servicer, as the case may be, under this Section 4.02(e) or
the negligence, bad faith or willful misconduct of the Servicer or the
Special Servicer, as the case may be, in connection therewith. If the
indemnification provided for herein is unavailable or insufficient to hold
harmless the Depositor, then (i) the Paying Agent agrees that it shall
contribute to the amount paid or payable to the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Paying Agent on the other in connection
with a breach of the Paying Agent's obligations under this Section 4.02(e)
or the Paying Agent's negligence, bad faith or willful misconduct in
connection therewith, (ii) the Servicer agrees that it shall contribute to
the amount paid or payable by the Depositor as a result of the losses,
claims, damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand
and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 4.02(e) or the Servicer's
negligence, bad faith or willful misconduct in connection therewith and
(iii) the Special Servicer agrees that it shall contribute to the amount
paid or payable by the Depositor as a result of the losses, claims,
damages or liabilities of the Depositor in such proportion as is
appropriate to reflect the relative fault of the Depositor on the one hand
and the Special Servicer on the other in connection with a breach of the
Special Servicer's obligations under this Section 4.02(e) or the Special
Servicer's negligence, bad faith or willful misconduct in connection
therewith.
(iv) Upon any filing with the Securities and Exchange Commission,
the Paying Agent shall promptly deliver to the Depositor, Servicer and
Special Servicer a copy of any such executed report, statement or
information.
(v) Prior to January 30 of the first year in which the Paying Agent
is able to do so under applicable law, the Paying Agent shall file a Form
15 Suspension Notification with respect to the Trust.
Section 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, the Servicer shall either (i) remit to the Paying Agent for deposit into
the Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in
the case of the One Post Office Square B Note) from its own funds an amount
equal to the aggregate amount of P&I Advances, if any, to be made in respect of
the related Distribution Date, (ii) apply amounts held in the Certificate
Account for future distribution to Certificateholders in subsequent months in
discharge of any such obligation to make P&I Advances or (iii) make P&I Advances
in the form of any combination of (i) and (ii) aggregating the total amount of
P&I Advances to be made. Any amounts held in the Certificate Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the Servicer's records and replaced by the Servicer by deposit in the
Certificate Account on or before the next succeeding P&I Advance Determination
Date (to the extent not previously replaced through the deposit of Late
Collections of the delinquent principal and/or interest in respect of which such
P&I Advances were made). The Servicer shall notify the Paying Agent of (i) the
aggregate amount of P&I Advances for a Distribution Date and (ii) the amount of
any Nonrecoverable P&I Advances for such Distribution Date, on or before 2
Business Days prior to such Distribution Date. If the Servicer fails to make a
required P&I Advance by 1:00 p.m., New York City time, on any P&I Advance Date,
an Event of Default as set forth in clause (a)(i) of Section 7.01 shall occur
and the Trustee shall make such P&I Advance pursuant to Section 7.05 by noon,
New York City time, on the related Distribution Date, in each case unless the
Servicer shall have cured such failure (and provided written notice of such cure
to the Trustee and the Paying Agent) by 11:00 a.m. on such Distribution Date. In
the event that the Servicer fails to make a required P&I Advance hereunder, the
Paying Agent shall notify the Trustee of such circumstances by 4:30 p.m. (New
York City time) on the related P&I Advance Date.
(b) Subject to Sections 4.03(c) and (e) below, the amount of P&I
Advances to be made by the Servicer with respect to any Distribution Date and
each Mortgage Loan shall be equal to: (i) the Monthly Payment (or in the case of
the One Post Office Square B Note, only the interest portion of the Monthly
Payment due on the One Post Office Square B Note) (net of related Servicing
Fees) other than Balloon Payments, that were due during the related Due Period
and delinquent as of the close of business on the Business Day preceding the
related P&I Advance Date (or not advanced by the Servicer or any Sub-Servicer on
behalf of the Servicer) and (ii) with respect to each Mortgage Loan as to which
the related Balloon Payment was due during or prior to the related Due Period
and was delinquent as of the end of the related Due Period (including any REO
Loan as to which the Balloon Payment would have been past due), an amount equal
to the Assumed Scheduled Payment (or, with respect to the One Post Office Square
B Note, only the interest portion of the Assumed Scheduled Payment for the One
Post Office Square B Note) therefor. Subject to subsection (c) below, the
obligation of the Servicer to make such P&I Advances is mandatory, and with
respect to any Mortgage Loan or REO Loan, shall continue until the Distribution
Date on which the proceeds, if any, received in connection with a Liquidation
Event or the disposition of the REO Property, as the case may be, with respect
thereto are to be distributed. No P&I Advances shall be made with respect to the
Companion Loans.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, the Servicer shall
consider Unliquidated Advances in respect of prior P&I Advances for purposes of
nonrecoverable determinations as if such P&I Advances were unreimbursed
Servicing Advances.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay the Trustee and itself (in that order of priority) as the case may be out
of any amounts then on deposit in the Certificate Account interest at the
Reimbursement Rate in effect from time to time, accrued on the amount of such
P&I Advance from the date made to but not including the date of reimbursement;
provided, however, that no interest will accrue on any P&I Advance (i) made with
respect to a mortgage loan until after the related Due Date has passed and any
applicable grace period has expired or (ii) if the related Monthly Payment is
received after the Determination Date but on or prior to the related P&I Advance
Date. The Servicer shall reimburse itself or the Trustee, as the case may be,
for any outstanding P&I Advance, subject to Section 3.19 of this Agreement, as
soon as practicably possible after funds available for such purpose are
deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall make an advance for Excess Interest, Yield Maintenance Charges,
Default Interest or Penalty Charges and (ii) if an Appraisal Reduction has been
made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the Assumed Scheduled Payment
for the related Distribution Date.
(f) In no event shall any of the Servicer or the Trustee be required
to make a P&I advance with respect to any Companion Loan.
Section 4.04 Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Mortgage Loans (other than the One Post Office Square B
Note), and any REO Loans (other than an REO Loan related to the One Post Office
Square B Note), expected to be outstanding immediately following such
Distribution Date, is less than (ii) the then aggregate Certificate Balance of
the Regular Certificates after giving effect to distributions of principal on
such Distribution Date and the allocation of Certificate Deferred Interest
pursuant to Section 4.06 (any such deficit, the "Collateral Support Deficit").
Any allocation of Collateral Support Deficit to a Class of Regular Certificates
shall be made by reducing the Certificate Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
Collateral Support Deficit shall constitute an allocation of losses and other
shortfalls experienced by the Trust Fund. Reimbursement of previously allocated
Collateral Support Deficit will not constitute distributions of principal for
any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made. To the extent any Nonrecoverable Advances (plus interest thereon) that
were reimbursed from principal collections on the Mortgage Loans and previously
resulted in a reduction of the Principal Distribution Amount, Loan Group 1
Principal Distribution Amount or Loan Group 2 Principal Distribution Amount are
subsequently recovered on the related Mortgage Loan, the amount of such recovery
will be added to the Certificate Balance of the Class or Classes of Certificates
that previously were allocated Collateral Support Deficit, in sequential order,
in each case up to the amount of the unreimbursed Collateral Support Deficit
allocated to such Class. If the Certificate Balance of any Class is so
increased, the amount of unreimbursed Collateral Support Deficit of such Class
shall be decreased by such amount.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class P Certificates; third to
the Class N Certificates; fourth to the Class M Certificates; fifth to the Class
L Certificates; sixth to the Class K Certificates; seventh to the Class J
Certificates; eighth to the Class H Certificates; ninth to the Class G
Certificates; tenth to the Class F Certificates; eleventh to the Class E
Certificates; twelfth to the Class D Certificates; thirteenth to the Class C
Certificates, fourteenth to the Class B Certificates and fifteenth to the Class
A-1 Certificates, Class A-2 Certificates and the Class A-1A Certificates, pro
rata (based upon Certificate Balance), until the remaining Certificate Balances
of such Classes of Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, fourth, to the
Class LA-1-4 Uncertificated Interest, fifth, to the Class LA-1-5 Uncertificated
Interest, and sixth, to the Class LA-1-6 Uncertificated Interest, in each case,
until reduced to zero, (ii) the Class A-1A Certificates, first, to the Class
LA-1A-1 Uncertificated Interest, second, to the Class LA-1A-2 Uncertificated
Interest, third, to the Class LA-1A-3 Uncertificated Interest, fourth, to the
Class LA-1A-4 Uncertificated Interest, fifth, to the Class LA-1A-5
Uncertificated Interest, sixth, to the Class LA-1A-6 Uncertificated Interest,
seventh, to the Class LA-1A-7 Uncertificated Interest and eighth, to the Class
LA-1A-8 Uncertificated Interest, in each case, until reduced to zero, (iii) the
Class A-2 Certificates, first to the Class LA-2-1 Uncertificated Interest,
second to the Class LA-2-2 Uncertificated Interest and third to the Class LA-2-3
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class F
Certificates, first to the Class LF-1 Uncertificated Interest, and second to the
Class LF-2 Uncertificated Interest, in each case, until reduced to zero, (v) the
Class G Certificates, first to the Class LG-1 Uncertificated Interest and second
to the Class LG-2 Uncertificated Interest, in each case, until reduced to zero,
(vi) the Class H Certificates, first to the Class LH-1 Uncertificated Interest
and second to the Class LH-2 Uncertificated Interest, in each case, until
reduced to zero and (vii) the Class L Certificates, first to the Class LL-1
Uncertificated Interest, and second to the Class LL-2 Uncertificated Interest,
in each case, until reduced to zero).
(d) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the Paying
Agent shall calculate the amount, if any, by which (i) the Stated Principal
Balance of the One Post Office Square B Note and any related REO Loan expected
to be outstanding immediately following such Distribution Date, is less than
(ii) the then aggregate Certificate Balance of the Class PS Certificates after
giving effect to distributions of principal on such Distribution Date and the
allocation of Certificate Deferred Interest pursuant to Section 4.06 (any such
deficit, the "One Post Office Square B Note Collateral Support Deficit"). Any
allocation of One Post Office Square B Note Collateral Support Deficit to a
Class of Class PS Certificates shall be made by reducing the Certificate Balance
thereof by the amount so allocated pursuant to Section 4.04(e). Any One Post
Office Square B Note Collateral Support Deficit allocated to a Class of Class PS
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. The allocation of
One Post Office Square B Note Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund with
respect to the One Post Office Square B Note. Reimbursement of previously
allocated One Post Office Square B Note Collateral Support Deficit will not
constitute distributions of principal for any purpose and will not result in an
additional reduction in the Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(e) On each Distribution Date, the Certificate Balances of the Class
PS Certificates will be reduced without distribution as a write-off to the
extent of any One Post Office Square B Note Collateral Support Deficit, if any,
allocable to such Certificates with respect to such Distribution Date. Any such
write-off shall be allocated among the respective Certificates as follows:
first, to the Class PS-7 Certificates; second, to the Class PS-6 Certificates;
third, to the Class PS-5 Certificates; fourth, to the Class PS-4 Certificates;
fifth, to the Class PS-3 Certificates; sixth, to the Class PS-2 Certificates;
and seventh, to the Class PS-1 Certificates until the remaining Certificate
Balances of such Classes of Certificates have been reduced to zero.
(f) With respect to any Distribution Date, any One Post Office
Square B Note Collateral Support Deficit allocated to a Class of Class PS
Certificates pursuant to Section 4.04(e) with respect to such Distribution Date
shall reduce each of the Lower-Tier Principal Amount of the Related
Uncertificated Lower-Tier Interest and the Loan REMIC Principal Amount of the
Related Loan REMIC Regular Interest with respect thereto as a write-off.
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reduction (including with respect to the One
Post Office Square Whole Loan) will be allocated by the Paying Agent on each
Distribution Date, only for purposes of determining the amount of P&I Advances
with respect to the related Mortgage Loan (including with respect to the One
Post Office Square Whole Loan), to the Certificate Balance of the Class NR,
Class P, Class N, Class M, Class L, Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C and Class B Certificates, in that order, up to the
amount of their respective Certificate Balances; provided, that, with respect to
an Appraisal Reduction on the One Post Office Square Whole Loan, such Appraisal
Reduction will be applied to the One Post Office Square B Note (and allocated to
the Class PS Certificates), prior to any allocation of such Appraisal Reduction
to the One Post Office Square Mortgage Loan or One Post Office Square Companion
Note. On any Distribution Date, an Appraisal Reduction that otherwise would be
allocated to a Class of Certificates will be allocated to the next most
subordinate Class to the extent that the Certificate Balance on such
Distribution Date for such Class of Certificates (prior to taking the Appraisal
Reduction into account) is less than the Appraisal Reduction for such
Distribution Date. With respect to an Appraisal Reduction allocated to the One
Post Office Square B Note pursuant to this Section 4.05, such Appraisal
Reduction will be applied, first, to the Class PS-7 Certificates, second, to the
Class PS-6 Certificates, third, to the Class PS-5 Certificates, fourth, to the
Class PS-4 Certificates, fifth, to the Class PS-3 Certificates, sixth, to the
Class PS-2 Certificates, and seventh to the Class PS-1 Certificates.
Solely for purposes of selecting or replacing the One Post Office
Square Representative, the Certificate Balances of the Class PS Certificates
will be reduced by any Appraisal Reductions with respect to the One Post Office
Square Whole Loan, in the order and priority set forth in Section 3.29(j).
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Certificates (other than the Class X and Class PS Certificates)
shall be reduced by an amount equal to the amount of Mortgage Deferred Interest
for all Majority Mortgage Loans for the Due Dates occurring in the related Due
Period allocated to such Class of Certificates, such Mortgage Deferred Interest
to be allocated first to the Class NR Certificates; second to the Class P
Certificates; third to the Class N Certificates; fourth to the Class M
Certificates; fifth to the Class L Certificates; sixth to the Class K
Certificates; seventh to the Class J Certificates; eighth to the Class H
Certificates; ninth to the Class G Certificates; tenth to the Class F
Certificates; eleventh to the Class E Certificates; twelfth to the Class D
Certificates; thirteenth to the Class C Certificates, fourteenth to the Class B
Certificates and fifteenth, pro rata (based upon Accrued Certificate Interest),
to the Class A-1, Class A-1A and Class A-2 Certificates, in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates for
such Distribution Date. On each Distribution Date, the amount of interest
distributable to the Class PS Certificates shall be reduced by an amount equal
to the amount of Mortgage Deferred Interest for the One Post Office Square B
Note for the Due Date occurring in the related Due Period, such Mortgage
Deferred Interest to be allocated first to the Class PS-7 Certificates, second
to the Class PS-6 Certificates, third to the Class PS-5 Certificates fourth to
the Class PS-4 Certificates, fifth to the Class PS-3 Certificates, sixth to the
Class PS-2 Certificates and seventh to the Class PS-1 Certificates in each case
up to the respective Accrued Certificate Interest for each such Class of
Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class A-1A, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificates, shall be increased by the amount of the Certificate Deferred
Interest allocated to such Class of Certificates on such Distribution Date
pursuant to Section 4.06(a) above. On each Distribution Date, the Certificate
Balances of the Class PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5,
Class PS-6 and Class PS-7 Certificates shall be increased by the amount of the
Certificate Deferred Interest allocated to such Class of Certificates on such
Distribution Date pursuant to Section 4.06(a) above. On each Distribution Date
the Certificate Deferred Interest allocated to the Related Uncertificated
Lower-Tier Interest (in the case of (i) the Class A-1 Certificates will be
allocated to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2
Uncertificated Interest, the Class LA-1-3 Uncertificated Interest, the Class
LA-1-4 Uncertificated Interest, the Class LA-1-5 Uncertificated Interest and the
Class LA-1-6 Uncertificated Interest, (ii) the Class A-1A Certificates will be
allocated to the Class LA-1A-1 Uncertificated Interest, the Class LA-1A-2
Uncertificated Interest, the Class LA-1A-3 Uncertificated Interest, the Class
LA-1A-4 Uncertificated Interest, the Class LA-1A-5 Uncertificated Interest, the
Class LA-1A-6 Uncertificated Interest, the Class LA-1A-7 Uncertificated Interest
and the Class LA-1A-8 Uncertificated Interest, (iii) the Class A-2 Certificates
will be allocated to the Class LA-2-1 Uncertificated Interest, the Class LA-2-2
Uncertificated Interest and the Class LA-2-3 Uncertificated Interest, (iv) the
Class F Certificates will be allocated to the Class LF-1 Uncertificated Interest
and the Class LF-2 Uncertificated Interest, (v) the Class G Certificates will be
allocated to the Class LG-1 Uncertificated Interest and the Class LG-2
Uncertificated Interest, (vi) the Class H Certificates will be allocated to the
Class LH-1 Uncertificated Interest and the Class LH-2 Uncertificated Interest
and (vii) the Class L Certificates will be allocated to the LL-1 Uncertificated
Interest and the Class LL-2 Uncertificated Interest, in each case pro rata,
based upon the Certificate Balance of such Uncertificated Lower-Tier Interests
immediately prior to such Distribution Date).
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates will be allocated
to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2 Uncertificated
Interest, the Class LA-1-3 Uncertificated Interest, the Class LA-1-4
Uncertificated Interest, the Class LA-1-5 Uncertificated Interest and the Class
LA-1-6 Uncertificated Interest, (ii) the Class A-1A Certificates will be
allocated to the Class LA-1A-1 Uncertificated Interest, the Class LA-1A-2
Uncertificated Interest, the Class LA-1A-3 Uncertificated Interest, the Class
LA-1A-4 Uncertificated Interest, the Class LA-1A-5 Uncertificated Interest, the
Class LA-1A-6 Uncertificated Interest, the Class LA-1A-7 Uncertificated Interest
and the Class LA-1A-8 Uncertificated Interest, (iii) the Class A-2 Certificates
will be allocated to the Class LA-2-1 Uncertificated Interest, the Class LA-2-2
Uncertificated Interest and the Class LA-2-3 Uncertificated Interest, (iv) the
Class F Certificates will be allocated to the Class LF-1 Uncertificated Interest
and the Class LF-2 Uncertificated Interest, (v) the Class G Certificates will be
allocated to the Class LG-1 Uncertificated Interest and the Class LG-2
Uncertificated Interest (vi) the Class H Certificates will be allocated to the
Class LH-1 Uncertificated Interest and the Class LH-2 Uncertificated Interest
and (vii) the Class L Certificates will be allocated to the LL-1 Uncertificated
Interest and the Class LL-2 Uncertificated Interest, in each case, pro rata,
based on interest accrued at the Pass-Through Rate for the Related Certificates;
provided, that no such allocation shall be made in respect of the portion of
such interest representing the related Class X-1 Strip Rate or Class X-2 Strip
Rate). On each Distribution Date, to the extent provided in Section 4.06(b),
Certificate Deferred Interest will be added to the Lower-Tier Principal Amount
of the Uncertificated Lower-Tier Interests in the same manner as the interest
thereon was reduced pursuant to the preceding sentence.
(d) Any Mortgage Deferred Interest of the One Post Office Square B
Note shall be allocated in reduction of the amount of interest distributable to,
and will be added to the Loan REMIC Principal Amount of, the Loan REMIC Regular
Interests, first to the Class KPS-7 Uncertificated Interest; second to the Class
KPS-6 Uncertificated Interest: third to the Class KPS-5 Uncertificated Interest;
fourth to the Class KPS-4 Uncertificated Interest; fifth to the Class KPS-3
Uncertificated Interest; sixth to the Class KPS-2 Uncertificated Interest; and
seventh to the Class KPS-1 Uncertificated Interest. Mortgage Deferred Interest
allocated to the Loan REMIC Regular Interests pursuant to the preceding sentence
will be allocated as Certificate Deferred Interest in reduction of the amount of
interest distributable to, and will be added to the Lower-Tier Principal Amount
of, the Related Uncertificated Lower-Tier Interests.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, consisting of the Excess Interest allocable to the Mortgage
Loans proceeds thereof held in the Certificate Accounts pertaining to the Excess
Interest allocable to the Mortgage Loans and the Excess Interest Distribution
Account shall constitute, and that the affairs of the Trust Fund (exclusive of
the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC) shall be
conducted so as to qualify such portion as a "grantor trust" under subpart E,
Part I of subchapter J of the Code, and the provisions hereof shall be
interpreted consistently with this intention. In furtherance of such intention,
the Paying Agent shall file or cause to be filed with the Internal Revenue
Service together with Form 1041 or such other form as may be applicable and
shall furnish or cause to be furnished, to the Class NR Certificateholders, the
amount of Excess Interest allocable to the Mortgage Loans received, in the time
or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-32. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Regular Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Class R and Class LR Certificates will each be issuable in one
or more registered, definitive physical certificates (each, a "Definitive
Certificate") substantially in the form of Certificates of each Class and with
such applicable legends as are set forth in the Exhibits hereto corresponding to
such Class. Each Certificate will share ratably in all rights of the related
Class. The Class X Certificates will be issuable only in minimum Denominations
of authorized initial Notional Amount of not less than $1,000,000 and in
integral multiples of $1.00 in excess thereof. The Offered Certificates (other
than the Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Residual Certificates) will be issuable in minimum Denominations of
authorized initial Certificate Balance of not less than $250,000, and in
integral multiples of $1.00 in excess thereof. If the Original Certificate
Balance or initial Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1.00, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or initial Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or initial Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1.00 that does not
exceed such amount. The Class R and Class LR Certificates will be issuable only
in one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 is hereby initially appointed Authenticating Agent with power to
act, on Trustee's behalf, in the authentication and delivery of the Certificates
in connection with transfers and exchanges as herein provided. If LaSalle Bank
National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, is removed as Paying Agent, then LaSalle Bank National
Association shall be terminated as Authenticating Agent. If the Authenticating
Agent is terminated, the Trustee shall appoint a successor Authenticating Agent,
which may be the Trustee or an Affiliate thereof.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 is hereby initially appointed Certificate
Registrar for the purpose of registering Certificates and transfers and
exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Paying Agent,
the Trustee, the Special Servicer and the Servicer, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If LaSalle Bank National Association
resigns or is removed as Paying Agent, the Trustee shall immediately succeed to
its predecessor's duties as Certificate Registrar. The Depositor, the Trustee,
the Servicer and the Special Servicer shall have the right to inspect the
Certificate Register or to obtain a copy thereof at all reasonable times, and to
rely conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Servicer, the Paying Agent, the Trustee, the Special Servicer and
any agent of any of them shall not be affected by any notice or knowledge to the
contrary. A Definitive Certificate is transferable or exchangeable only upon the
surrender of such Certificate to the Certificate Registrar at its office
maintained at LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Asset Backed Securities Trust Services
Group- X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-LN1 (the "Registrar Office")
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney). Subject to the requirements of Sections 5.02(b), (c) and
(d), the Certificate Registrar shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Definitive Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to ARCap CMBS
Fund REIT, Inc.) is to be made in reliance upon an exemption from the Securities
Act, and under the applicable state securities laws, then either:
(i) Rule 144A Book-Entry Certificate to Regulation S
Book-Entry Certificate During the Restricted Period. If, during the
Restricted Period, a Certificate Owner of an interest in a Rule 144A
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Rule 144A Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in a Regulation S Book-Entry Certificate, such Certificate Owner
may, in addition to complying with all applicable rules and
procedures of the Depository and Clearstream or Euroclear applicable
to transfers by their respective participants (the "Applicable
Procedures"), transfer or cause the transfer of such beneficial
interest for an equivalent beneficial interest in the Regulation S
Book-Entry Certificate only upon compliance with the provisions of
this Section 5.02(b)(i). Upon receipt by the Certificate Registrar
at its Registrar Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository
Participant directing the Certificate Registrar to credit or cause
to be credited to another specified Depository Participant's account
a beneficial interest in the Regulation S Book-Entry Certificate in
an amount equal to the Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository
Participant (and the Euroclear or Clearstream account, as the case
may be) to be credited with, and the account of the Depository
Participant to be debited for, such beneficial interest, and (3) a
certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar,
as custodian of the Book-Entry Certificates shall reduce the
Denomination of the Rule 144A Book-Entry Certificate by the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be so transferred and, concurrently with such
reduction, increase the Denomination of the Regulation S Book-Entry
Certificate by the Denomination of the beneficial interest in the
Rule 144A Book-Entry Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate
having a Denomination equal to the amount by which the Denomination
of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(ii) Rule 144A Book-Entry Certificate to Regulation S
Book-Entry Certificate After the Restricted Period. If, after the
Restricted Period, a Certificate Owner of an interest in a Rule 144A
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Rule 144A Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in a Regulation S Book-Entry Certificate, such holder may, in
addition to complying with all Applicable Procedures, transfer or
cause the transfer of such beneficial interest for an equivalent
beneficial interest in a Regulation S Book-Entry Certificate only
upon compliance with the provisions of this Section 5.02(b)(ii).
Upon receipt by the Certificate Registrar at its Registrar Office of
(1) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in the
Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Depository Participant (and, in the
case of a transfer pursuant to and in accordance with Regulation S,
the Euroclear or Clearstream account, as the case may be) to be
credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the
form of Exhibit P hereto given by the Certificate Owner that is
transferring such interest, the Certificate Registrar as custodian
of the Book-Entry Certificates shall reduce the Denomination of the
Rule 144A Book-Entry Certificate by the aggregate Denomination of
the beneficial interest in the Rule 144A Book-Entry Certificate to
be so transferred and, concurrently with such reduction, increase
the Denomination of the Regulation S Book-Entry Certificate by the
aggregate Denomination of the beneficial interest in the Rule 144A
Book-Entry Certificate to be so transferred, and credit or cause to
be credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate
having a Denomination equal to the amount by which the Denomination
of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) Regulation S Book-Entry Certificate to Rule 144A
Book-Entry Certificate. If the Certificate Owner of an interest in a
Regulation S Book-Entry Certificate wishes at any time to transfer
its beneficial interest in such Regulation S Book-Entry Certificate
to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Rule 144A Book-Entry Certificate, such
holder may, in addition to complying with all Applicable Procedures,
transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in the Rule 144A Book-Entry
Certificate only upon compliance with the provisions of this Section
5.2(b)(iii). Upon receipt by the Certificate Registrar at its
Registrar Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be
credited to another specified Depository Participant's account a
beneficial interest in the Rule 144A Book-Entry Certificate in an
amount equal to the Denomination of the beneficial interest in the
Regulation S Book-Entry Certificate to be transferred, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Depository Participant to
be credited with, and the account of the Depository Participant (or,
if such account is held for Euroclear or Clearstream, the Euroclear
or Clearstream account, as the case may be) to be debited for such
beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate
(i) during the Restricted Period, a certificate in the form of
Exhibit Q hereto given by the Certificate Owner, or (ii) after the
Restricted Period, an Investment Representation Letter in the form
of Exhibit C attached hereto from the transferee to the effect that
such transferee is a Qualified Institutional Buyer, the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall reduce
the Denomination of the Regulation S Book-Entry Certificate by the
Denomination of the beneficial interest in the Regulation S
Book-Entry Certificate to be transferred, and, concurrently with
such reduction, increase the Denomination of the Rule 144A
Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Book-Entry Certificate to be
so transferred, and credit or cause to be credited to the account of
the Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or
both, as the case may be) a beneficial interest in the Rule 144A
Book-Entry Certificate having a Denomination equal to the amount by
which the Denomination of the Regulation S Book-Entry Certificate
was reduced upon such transfer.
(iv) Transfers Within Regulation S Book-Entry Certificates
During Restricted Period. If, during the Restricted Period, the
Certificate Owner of an interest in a Regulation S Book-Entry
Certificate wishes at any time to transfer its beneficial interest
in such Certificate to a Person who wishes to take delivery thereof
in the form of a Regulation S Book-Entry Certificate, such
Certificate Owner may transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable
Procedures. Upon receipt by the Certificate Registrar at its
Registrar Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be
credited to another specified Depository Participant's account a
beneficial interest in such Regulation S Book-Entry Certificate in
an amount equal to the Denomination of the beneficial interest to be
transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account
of the Depository Participant to be credited with, and the account
of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as
the case may be) to be debited for, such beneficial interest and (3)
a certificate in the form of Exhibit R hereto given by the
transferee, the Certificate Registrar, as custodian of the
Book-Entry Certificates, shall debit the account of the transferring
Regulation S Certificateholder and credit or cause to be credited to
the account of the Person specified in such instructions (who shall
be a Depository Participant acting for or on behalf of Euroclear or
Clearstream, or both, as the case may be) a beneficial interest in
the Regulation S Book-Entry Certificate having a Denomination equal
to the amount specified in such instructions by which the account to
be debited was reduced upon such transfer.
(v) Transfers of Book-Entry Certificates to Definitive
Certificates. Any and all transfers from a Book-Entry Certificate to
a transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to
the restrictions on the transfer of such Definitive Certificate
described on the face of such Certificate, and such transferee
agrees that it will transfer such Definitive Certificate only as
provided therein and herein. No such transfer shall be made and the
Certificate Registrar shall not register any such transfer unless
such transfer is made in accordance with this Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will
require delivery of such Certificate to the transferee in the
form of a Definitive Certificate and the Certificate Registrar
shall register such transfer only if prior to the transfer (i)
two years have expired after the later of the Closing Date or
the last date on which the Depositor or any Affiliate thereof
held such Certificate, or (ii) such transferee furnishes to
the Certificate Registrar (1) an Investment Representation
Letter in the form of Exhibit C attached hereto to the effect
that the transfer is being made to an Institutional Accredited
Investor in accordance with an applicable exemption under the
Act, and (2) if required by the Certificate Registrar, an
opinion of counsel acceptable to the Certificate Registrar
that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take
delivery in the form of a Definitive Certificate will be
registered by the Certificate Registrar only if the transferor
has provided the Certificate Registrar with a certificate in
the form of Exhibit R attached hereto. Transfers of a
beneficial interest in a Book-Entry Certificate to a Qualified
Institutional Buyer wishing to take delivery in the form of a
Definitive Certificate will be registered by the Certificate
Registrar only if such transferee furnishes to the Certificate
Registrar an Investment Representation Letter in the form of
Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance
with Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a
beneficial interest in a Regulation S Book-Entry Certificate
to a Definitive Certificate pursuant to subparagraph (B) above
shall be made prior to the expiration of the Restricted
Period. Upon acceptance for exchange or transfer of a
beneficial interest in a Book-Entry Certificate for a
Definitive Certificate, as provided herein, the Certificate
Registrar shall endorse on the schedule affixed to the related
Book-Entry Certificate (or on a continuation of such schedule
affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of
such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon
transfer thereof.
(vi) Transfers of Definitive Certificates to the Book-Entry
Certificates. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Registrar Office of (1) the Definitive Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(d),
(2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) Transfers of Definitive Certificates to Definitive
Certificates. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii)An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND (A)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS THIS
CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE
COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT
PURCHASER OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN
INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN
TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition of any such Certificate shall be made
unless the Certificate Registrar shall have received either (i) a representation
letter from the proposed purchaser or transferee of such Certificate
substantially in the form of Exhibit F attached hereto, to the effect that such
proposed purchaser or transferee is not (a) an employee benefit plan subject to
the fiduciary responsibility provisions of ERISA or the prohibited transaction
provisions of Section 4975 of the Code, or a governmental plan (as defined in
Section 3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA)
for which no election has been made under Section 410(d) of the Code subject to
any federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each, a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such Plan and the application of Department of Labor Regulation
ss. 2510.3-101), other than, an insurance company using the assets of its
general account under circumstances whereby the purchase and holding of such
Certificates by such insurance company would be exempt from the prohibited
transaction provisions of ERISA and the Code under Sections I and III of
Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate is
presented for registration in the name of a purchaser or transferee that is any
of the foregoing, an Opinion of Counsel in form and substance satisfactory to
the Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not
constitute or result in a "prohibited transaction" within the meaning of ERISA,
Section 4975 of the Code or any Similar Law, and will not subject the Trustee,
the Paying Agent, the Certificate Registrar, the Servicer, the Special Servicer,
the Underwriters, the Initial Purchasers or the Depositor to any obligation or
liability (including obligations or liabilities under ERISA, Section 4975 of the
Code or any such Similar Law) in addition to those set forth in the Agreement.
The Certificate Registrar shall not register the sale, transfer, pledge or other
disposition of any ERISA Restricted Certificate unless the Certificate Registrar
has received either the representation letter described in clause (i) above or
the Opinion of Counsel described in clause (ii) above. The costs of any of the
foregoing representation letters or Opinions of Counsel shall not be borne by
any of the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Underwriters, the Initial Purchasers, the Certificate
Registrar or the Trust Fund. Each Certificate Owner of an ERISA Restricted
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
ERISA Restricted Certificates that would constitute or result in a prohibited
transaction under ERISA, Section 4975 of the Code or any Similar Law, or would
otherwise violate the provisions of this Section 5.02(c) shall be deemed
absolutely null and void ab initio, to the extent permitted under applicable
law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Paying Agent under
clause (ii) below to deliver payments to a Person other than such Person.
The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulationsss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(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 substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") 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 and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit 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 letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(c) 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; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(c)(i)(C) above or is not a Permitted Transferee.
(iii) The Paying Agent shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury Regulations
Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class A-1A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class X-1 or Class X-2 Certificates) or a beneficial interest in a
Book-Entry Certificate representing a Non-Registered Certificate is being held
by or for the benefit of a Person who is not an Eligible Investor, or that such
holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Definitive
Certificate or beneficial interest in such Book-Entry Certificate to an Eligible
Investor within 14 days after notice of such determination and each
Certificateholder by its acceptance of a Certificate authorizes the Certificate
Registrar to take such action.
(f) The Certificate Registrar shall provide notice to the Trustee,
the Paying Agent, the Servicer, the Special Servicer and the Depositor of each
transfer of a Certificate on its books and records and to provide each such
Person with an updated copy of the Certificate Register on or about January 1st
and July 1st of each year, commencing January 1, 2004.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.02(d) above or subsection (c) below, shall not be entitled
to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Paying Agent, the Servicer, the Special
Servicer, the Depositor and the Certificate Registrar may for all purposes,
including the making of payments due on the Book-Entry Certificates, deal with
the Depository as the authorized representative of the Certificate Owners with
respect to such Certificates for the purposes of exercising the rights of
Certificateholders hereunder. The rights of Certificate Owners with respect to
the Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple requests and
directions from, and votes of, the Depository as Holder of the Book-Entry
Certificates with respect to any particular matter shall not be deemed
inconsistent if they are made with respect to different Certificate Owners. The
Paying Agent may establish a reasonable record date in connection with
solicitations of consents from or voting by Certificateholders and shall give
notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent
and the Certificate Registrar in writing that the Depository is no longer
willing or able to properly discharge its responsibilities with respect to the
Book-Entry Certificates and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee, the Paying
Agent and the Certificate Registrar in writing that it elects to terminate the
book-entry system through the Depository, the Paying Agent shall notify the
affected Certificate Owners, through the Depository with respect to all, any
Class or any portion of any Class of the Certificates or (iii) the Certificate
Registrar determines that Definitive Certificates are required in accordance
with the provisions of Section 5.03(e), of the occurrence of any such event and
of the availability of Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates by the Depository or any custodian acting on behalf of the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Certificate Registrar shall execute, and the
Authenticating Agent shall authenticate and deliver, within 5 Business Days of
such request if made at the Registrar Office, or within 10 Business Days if made
at the office of a transfer agent (other than the Certificate Registrar), the
Definitive Certificates to the Certificate Owners identified in such
instructions. None of the Depositor, the Servicer, the Trustee, the Paying
Agent, the Special Servicer, the Authenticating Agent and the Certificate
Registrar shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Certificates, the registered Holders of such
Definitive Certificates shall be recognized as Certificateholders hereunder and,
accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee has been advised by counsel that in connection
with such proceeding it is necessary or appropriate for the Trustee to obtain
possession of all or any portion of the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the Trust Fund, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar and any agents of any of them may treat
the person in whose name such Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder," and none of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar
and any agent of any of them shall be affected by notice to the contrary except
as provided in Section 5.02(d).
Section 5.06 Certificate Ownership Certification.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Paying
Agent shall make such determination based on a certificate of such Person which
shall be addressed to the Paying Agent and shall specify, in reasonable detail
satisfactory to the Paying Agent, such Person's name and address, the Class and
Certificate Principal Balance or Notional Amount of the Regular Certificate
beneficially owned, and any intermediaries through which such Person's interest
in such Regular Certificate is held (any such certification, other than one
which the Paying Agent shall refuse to recognize pursuant to the following
procedures, a "Certificate Ownership Certification"); provided, however, that
the Paying Agent shall not knowingly recognize such Person as a Certificate
Owner if such Person, to the actual knowledge of a Responsible Officer of such
party, acquired its interest in a Regular Certificate in violation of the
transfer restrictions herein, or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Paying
Agent from the Depository or any Depository Participant with respect to the
identity of a Certificate Owner; provided, however, that to the extent the
Paying Agent is required to obtain such Certificate Owner information from the
Depository or any Depository Participant, the Paying Agent shall be reimbursed
for any cost or expense in obtaining such information from the Distribution
Account. The Paying Agent may conclusively rely on such Certificate Ownership
Certification. The Servicer will only be required to acknowledge the status of
any Person as a Certificateholder or Certificate Owner to the extent that the
Paying Agent, at the request of the Servicer, identifies such Person as a
Certificateholder or Certificate Owner.
Section 5.07 Appointment of Paying Agent.
(a) LaSalle Bank National Association, located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, is hereby initially appointed
Paying Agent to act on the Trustee's behalf in accordance with the terms of this
Agreement. If the Paying Agent resigns or is terminated, the Trustee shall
appoint a successor Paying Agent which may be the Trustee or an Affiliate
thereof to fulfill the obligations of the Paying Agent hereunder which must be
(i) a corporation, national bank, national banking association or a trust
company, organized and doing business under the laws of any state or the United
States of America, authorized under such laws to exercise corporate trust powers
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) an institution whose long-term senior unsecured debt is
rated "Aa3" by Xxxxx'x and "AA-" by S&P (or such entity as would not, as
evidenced in writing by such Rating Agency, result in the qualification,
downgrading or withdrawal of any of the ratings then assigned thereby to the
Certificates).
(b) The Paying Agent may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other paper
or document reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(c) The Paying Agent, at the expense of the Trust Fund (but only if
such amount constitutes "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii)), may consult with counsel
and the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance therewith.
(d) The Paying Agent shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
(e) The Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Paying Agent of its duties or obligations
hereunder.
(f) The Paying Agent shall not be responsible for any act or
omission of the Trustee, the Servicer or the Special Servicer or of the
Depositor.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person , in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Servicer, the
Special Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of obligations and duties hereunder.
The Depositor, the Servicer and the Special Servicer and any director, officer,
member, manager, employee or agent of the Depositor, the Servicer or the Special
Servicer may rely on any document of any kind which, prima facie, is properly
executed and submitted by any Person respecting any matters arising hereunder.
The Depositor, the Servicer, the Special Servicer and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, or the Certificates, other than any loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties; or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law, provided, however, that if such losses and liabilities relate
solely to the One Post Office Square B Note, then such indemnification shall be
payable from amounts in the Certificate Account that relate to the One Post
Office Square B Note. For the avoidance of doubt, such losses or liabilities
shall not be deemed to relate solely to the One Post Office Square B Note for
the sole reason that the related legal action was instituted by, or at the
direction of, the One Post Office Square Representative. With respect to
indemnification related to the One Post Office Square Whole Loan, the Servicer
shall seek contribution from the holder of the One Post Office Square Companion
Note for the pro rata share of any indemnification that is allocable to the One
Post Office Square Companion Note. Each of the Servicer and the Special Servicer
may rely, and shall be protected in acting or refraining from acting upon, any
resolution, officer's certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, financial statement, agreement, appraisal, bond or other document (in
electronic or paper format) as contemplated by and in accordance with this
Agreement and reasonably believed or in good faith believed by the Servicer or
the Special Servicer to be genuine and to have been signed or presented by the
proper party or parties and each of them may consult with counsel, in which case
any written advice of counsel or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Paying Agent, the Trustee and the Trust and any
director, officer, employee or agent thereof, and hold them harmless, from and
against any and all claims, losses, penalties, fines, forfeitures, reasonable
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that any of them may sustain arising from or as a result of any
willful misfeasance, bad faith or negligence of the Servicer or the Special
Servicer, as the case may be, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Servicer or the
Special Servicer, as the case may be, of its duties and obligations hereunder or
by reason of breach of any representations or warranties made herein; provided
that such indemnity shall not cover indirect or consequential damages. The
Trustee, the Paying Agent or the Depositor, as the case may be, shall
immediately notify the Servicer or the Special Servicer, as applicable, if a
claim is made by a third party with respect to this Agreement or the Mortgage
Loans entitling the Trust to indemnification hereunder, whereupon the Servicer
or the Special Servicer, as the case may be, shall assume the defense of such
claim (with counsel reasonably satisfactory to the Paying Agent, the Trustee or
the Depositor) 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 Servicer or the Special Servicer, as the case may be, shall not affect any
rights any of the foregoing Persons may have to indemnification under this
Agreement or otherwise, unless the Servicer's, or the Special Servicer's, as the
case may be, defense of such claim is materially prejudiced thereby.
(d) Each of the Trustee and the Paying Agent, respectively (and not
jointly and severally) agrees to indemnify the Servicer and the Special Servicer
and any director, officer, employee or agent thereof, and hold them harmless,
from and against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that any of them may sustain arising from or as a
result of any willful misfeasance, bad faith or negligence of the Trustee or the
Paying Agent, respectively, in the performance of its obligations and duties
under this Agreement or by reason of negligent disregard by the Trustee or the
Paying Agent, respectively, of its duties and obligations hereunder or by reason
of breach of any representations or warranties made herein; provided, that such
indemnity shall not cover indirect or consequential damages. The Servicer or the
Special Servicer, as the case may be, shall immediately notify the Trustee and
the Paying Agent, respectively, if a claim is made by a third party with respect
to this Agreement, whereupon the Trustee or the Paying Agent shall assume the
defense of such claim (with counsel reasonably satisfactory to the Servicer or
the Special 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 or the Paying Agent shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Trustee's or the Paying Agent's defense of such claim is materially
prejudiced thereby.
(e) The Depositor agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Servicer or the Special Servicer, as the case may
be, shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, whereupon the Depositor shall assume the defense
of such claim (with counsel reasonably satisfactory to the Servicer or the
Special 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 Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, 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 termination or resignation of the Servicer, the Trustee,
the Paying Agent and the Special Servicer.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Servicer nor
the Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of the Servicer, upon the appointment of, and the acceptance of such
appointment by, a successor Servicer and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of the then current ratings assigned by such Rating Agency to any Class of
Certificates. Only the Servicer shall be permitted to resign pursuant to clause
(b) above. Any such determination permitting the resignation of the Servicer or
the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by the Servicer or the Special Servicer shall become effective until
the Trustee or a successor Servicer shall have assumed the Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of the Servicer hereunder, the
Servicer shall have the right and opportunity to appoint any successor Servicer
with respect to this Section 6.04, provided that such successor Servicer is
approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 The Servicer and the Special Servicer as Certificate
Owner.
The Servicer, the Special Servicer or any Affiliate thereof may
become the Holder of (or, in the case of a Book-Entry Certificate, Certificate
Owner with respect to) any Certificate with (except as otherwise set forth in
the definition of "Certificateholder") the same rights it would have if it were
not the Servicer, the Special Servicer or an Affiliate thereof.
Section 6.07 The Directing Certificateholder and the One Post Office
Square Representative.
The Directing Certificateholder (or with respect to the One Post
Office Square Whole Loan, the One Post Office Square Representative, so long as
no One Post Office Square Control Appraisal Event has occurred), shall be
entitled to advise (1) the Special Servicer with respect to all Specially
Serviced Mortgage Loans, (2) the Special Servicer and the Servicer with respect
to Non-Specially Serviced Mortgage Loans having Stated Principal Balances
greater than or equal to $2,500,000 (other than with respect to the extension of
maturity of any Mortgage Loan) as to which the Servicer must obtain the consent
or deemed consent of the Special Servicer, and (3) the Special Servicer with
respect to all Mortgage Loans for which an extension of maturity is being
considered by the Special Servicer or by the Servicer subject to consent or
deemed consent of the Special Servicer, and notwithstanding anything herein to
the contrary, except as set forth in, and in any event subject to, Section
3.08(f) and the second paragraph of this Section 6.07, the Servicer or Special
Servicer, as applicable, shall not be permitted to take any of the following
actions as to which the Directing Certificateholder (or with respect to the One
Post Office Square Whole Loan, the One Post Office Square Representative) has
objected in writing within ten (10) Business Days of being notified thereof
(provided that if such written objection has not been received by the Servicer
or the Special Servicer, as applicable, within such ten (10) Business Day
period, then the Directing Certificateholder (or with respect to the One Post
Office Square Whole Loan, the One Post Office Square Representative) will be
deemed to have waived its right to object):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification or consent to a modification of a monetary
term of a Mortgage Loan or any extension of the maturity date of any
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan, or any consent to either of the
foregoing, other than required pursuant to the specific terms of the
related Mortgage Loan and there is no material lender discretion;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Specially Serviced Mortgage Loan or a Non-Specially
Serviced Mortgage Loan with a Stated Principal Balance greater than or
equal to $2,500,000 or any consent to such waiver;
(vii) any management company changes or franchise changes with
respect to a Mortgage Loan for which the Servicer is required to consent
or approve;
(viii) releases of any escrows, reserve accounts or letters of
credit held as performance escrows or reserves in an amount greater than
or equal to $1,500,000, other than required pursuant to the specific terms
of the Mortgage Loans and there is no material lender discretion;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan;
(x) any determination of an Acceptable Insurance Default;
(xi) with respect to the One Post Office Square Whole Loan, any
acceptance of a discounted payoff of the One Post Office Square Whole
Loan;
(xii) with respect to the One Post Office Square Whole Loan, any
renewal or replacement of the then existing insurance policies to the
extent that such renewal or replacement policy does not comply with the
terms of the Mortgage Loan documents or any waiver, modification or
amendment of any insurance requirements under the related Mortgage Loan
documents;
(xiii) with respect to the One Post Office Square Whole Loan, any
approval of a material capital expenditure;
(xiv) with respect to the One Post Office Square Whole Loan, any
replacement of the property manager; and
(xv) with respect to the One Post Office Square Whole Loan, any
adoption or approval of a plan in bankruptcy of the related Mortgagor,
provided that, in the event that the Special Servicer or Servicer (in the event
the Servicer is otherwise authorized by this Agreement to take such action), as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Servicer, as applicable may take any such action without waiting for
the Directing Certificateholder's or the One Post Office Square
Representative's, as applicable, response.
In addition, the Directing Certificateholder, subject to any rights,
if any, of the related Companion Holder to advise the Special Servicer with
respect to the related Loan Pair pursuant to the terms of the related AB
Intercreditor Agreement may direct the Special Servicer to take, or to refrain
from taking, such other actions with respect to a Mortgage Loan, as the
Directing Certificateholder may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary, no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standards, or
expose the Servicer, the Special Servicer, the Paying Agent, the Trust Fund or
the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
In the event the Special Servicer or Servicer, as applicable,
determines that a refusal to consent by the Directing Certificateholder or any
advice from the Directing Certificateholder or the One Post Office Square
Representative would otherwise cause the Special Servicer or Servicer, as
applicable, to violate the terms of this Agreement, including without
limitation, the Servicing Standards, the Special Servicer or Servicer, as
applicable, shall disregard such refusal to consent or advice and notify the
Directing Certificateholder, the Trustee and the Rating Agencies of its
determination, including a reasonably detailed explanation of the basis
therefor.
The Directing Certificateholder (and with respect to the One Post
Office Square Whole Loan, the One Post Office Square Representative) shall have
no liability to the Trust Fund or the Certificateholders for any action taken,
or for refraining from the taking of any action, or for errors in judgment;
provided, however, that the Directing Certificateholder (and with respect to the
One Post Office Square Whole Loan, the One Post Office Square Representative)
shall not be protected against any liability to the Controlling Class
Certificateholder (or with respect to the One Post Office Square Representative,
the One Post Office Square Controlling Holder) which would otherwise be imposed
by reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations or duties. By its
acceptance of a Certificate, each Certificateholder acknowledges and agrees that
the Directing Certificateholder (and with respect to the One Post Office Square
Whole Loan, the One Post Office Square Representative) may take actions that
favor the interests of one or more Classes of the Certificates over other
Classes of the Certificates, and that the Directing Certificateholder (and with
respect to the One Post Office Square Whole Loan, the One Post Office Square
Representative) may have special relationships and interests that conflict with
those of Holders of some Classes of the Certificates, that the Directing
Certificateholder (or with respect to the One Post Office Square Whole Loan, the
One Post Office Square Representative) may act solely in the interests of the
Holders of the Controlling Class, that the Directing Certificateholder does not
have any duties or liability to the Holders of any Class of Certificates other
than the Controlling Class (or with respect to the One Post Office Square
Representative, the One Post Office Square Controlling Holder), that the
Directing Certificateholder may take actions that favor the interests of the
Holders of the Controlling Class (or with respect to the One Post Office Square
Representative, the One Post Office Square Controlling Holder) over the
interests of the Holders of one or more other classes of Certificates, that the
Directing Certificateholder (or with respect to the One Post Office Square Whole
Loan, the One Post Office Square Representative) shall not be liable to any
Certificateholder, by reason of its having acted solely in the interests of the
Holders of the Controlling Class (or with respect to the One Post Office Square
Representative, the One Post Office Square Controlling Holder), and that the
Directing Certificateholder (and with respect to the One Post Office Square
Whole Loan, the One Post Office Square Representative) shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Certificateholder (and with respect to the One
Post Office Square Whole Loan, the One Post Office Square Representative) or any
director, officer, employee, agent or principal thereof for having so acted.
Notwithstanding the foregoing, with respect to the One Post Office
Square Whole Loan, following the occurrence and during the continuance of a One
Post Office Square Control Appraisal Event, the Directing Certificateholder
shall exercise such rights in conjunction with the holder of the One Post Office
Square Companion Note (or the controlling class of any One Post Office Square
Companion Loan Securities, if applicable), pursuant to the procedure set forth
in the One Post Office Square Intercreditor Agreement.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) (A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such deposit is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Paying Agent
for deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account or to
deposit into, or to remit to the Paying Agent for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given (A) to the
Servicer or the Special Servicer, as the case may be, by any other party
hereto, or (B) to the Servicer or the Special Servicer, as the case may
be, with a copy to each other party to this Agreement, by the Holders of
Certificates evidencing Percentage Interests aggregating not less than
25%; provided, however, if such failure is capable of being cured and the
Servicer or Special Servicer, as applicable, is diligently pursuing such
cure, such 30-day period will be extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.24 or Section
3.25, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by the Depositor, the Paying Agent
or the Trustee, or to the Servicer, the Special Servicer, the Depositor
the Paying Agent and the Trustee by the Holders of Certificates evidencing
Percentage Interests aggregating not less than 25%; provided, however, if
such breach is capable of being cured and the Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period will be extended an additional 30 days; or
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a contributory factor in such rating action and such "watch" status is
not rescinded within 90 days (or such longer period as would not, as
confirmed by Moody's in writing, result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates); or
(ix) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a contributory factor in such downgrade; or
(x) the Servicer or Special Servicer is removed from S&P's approved
master servicer list or approved special servicer list, as applicable, and
is not reinstated to the approved master servicer or special servicer
list, as applicable, within 30 days of such removal.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee or the Depositor may, and at the written direction (of the Directing
Certificateholder) or the Holders of Certificates entitled to at least 51% of
the Voting Rights, the Trustee shall, terminate, by notice in writing to the
Defaulting Party, with a copy of such notice to the Depositor, all of the rights
(subject to Section 3.11 and Section 6.03) and obligations of the Defaulting
Party under this Agreement and in and to the Mortgage Loans and the proceeds
thereof; provided, however, that the Defaulting Party shall be entitled to the
payment of accrued and unpaid compensation and reimbursement through the date of
such termination as provided for under this Agreement for services rendered and
expenses incurred. From and after the receipt by the Defaulting Party of such
written notice except as otherwise provided in this Article VII, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee with respect to a
termination of the Servicer and to the Servicer with respect to a termination of
the Special Servicer pursuant to and under this Section, and, without
limitation, the Trustee or Servicer, as applicable, is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Servicer and Special Servicer each agree
that if it is terminated pursuant to this Section 7.01(b), it shall promptly
(and in any event no later than 20 Business Days subsequent to its receipt of
the notice of termination) provide the Trustee or the Servicer, as applicable,
with all documents and records requested by it to enable it to assume the
Servicer's or the Special Servicer's, as the case may be, functions hereunder,
and shall cooperate with the Trustee or the Servicer, as applicable, in
effecting the termination of the Servicer's or the Special Servicer's, as the
case may be, responsibilities and rights (subject to Section 3.11 and Section
6.03) hereunder, including, without limitation, the transfer within 5 Business
Days to the Trustee or the Servicer, as applicable, for administration by it of
all cash amounts which shall at the time be or should have been credited by the
Servicer to the Certificate Account or any Servicing Account (if it is the
Defaulting Party) or by the Special Servicer to the REO Account (if it is the
Defaulting Party) or thereafter be received with respect to the Mortgage Loans
or any REO Property (provided, however, that the Servicer and the Special
Servicer each shall, if terminated pursuant to this Section 7.01(b), continue to
be entitled to receive all amounts accrued or owing to it under this Agreement
on or prior to the date of such termination, whether in respect of Advances (in
the case of the Special Servicer or the Servicer) or otherwise, and it and its
directors, managers, officers, members, employees and agents shall continue to
be entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination).
(c) If the Servicer receives notice of termination solely due to an
Event of Default under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii) through (x) and if the Servicer to be terminated pursuant
to Section 7.01(b) provides the Trustee with the appropriate "request for
proposal" materials within five (5) Business Days following such termination
notice, then the Servicer shall continue to service as Servicer hereunder until
a successor Servicer is selected in accordance with this Section 7.01(c). Upon
receipt of the "request for proposal" materials, Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Servicer
pursuant to Section 7.01(b)) solicit good faith bids for the rights to service
the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Servicer hereunder in accordance with Sections 6.02 and 7.02
(any such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many persons as the Trustee can
determine are Qualified Bidders; provided that, at the Trustee's request, the
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids; and provided, further, that the Trustee shall not be responsible if
less than three (3) or no Qualified Bidders submit bids for the right to service
the Mortgage Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Servicer, and to agree to be bound by the terms
hereof, within 45 days after the notice of termination of the Servicer. The
materials provided to the Trustee shall provide for soliciting bids: (i) on the
basis of such successor Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements and to enter into a Sub-Servicing Agreement with the
terminated Servicer to service each of the Mortgage Loans not subject to a
Sub-Servicing Agreement at a servicing fee rate per annum equal to the Servicing
Fee Rate minus 2.0 basis points per Mortgage Loan serviced (each, a
"Servicing-Retained Bid"); and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing-Released Bid) (the "Successful Bidder")
to act as successor Servicer hereunder; provided, however, that if the Trustee
does not receive confirmation in writing by each Rating Agency that the
appointment of such Successful Bidder as successor Servicer will not result in
the withdrawal, downgrade, or qualification of the rating assigned by the Rating
to any class of Certificates then rated by the Rating Agency within 10 days
after the selection of such Successful Bidder, then the Trustee shall repeat the
bid process described above (but subject to the above-described 45-day time
period) until such confirmation is obtained. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Servicer pursuant to
the terms hereof no later than 45 days after notice of the termination of the
Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Servicer to be terminated pursuant to Section 7.01(b), the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Servicer and
each terminated Sub-Servicer its respective Bid Allocation.
The Servicer to be terminated pursuant to Section 7.01(b) shall be
responsible for all out-of-pocket expenses incurred in connection with the
attempt to sell its rights to service the Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within the above-described time period or no Successful
Bidder was identified within the above-described time period, the Servicer to be
terminated pursuant to Section 7.01(b) shall reimburse the Trustee for all
reasonable "out-of-pocket" expenses incurred by the Trustee in connection with
such bid process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a successor to act
as Servicer hereunder in accordance with Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Servicer, the Paying Agent
and the Trustee. Upon a termination or resignation of such Special Servicer, the
Directing Certificateholder shall appoint a successor Special Servicer;
provided, however, that (i) such successor will meet the requirements set forth
in Section 7.02 and (ii) as evidenced in writing by each of the Rating Agencies,
the proposed successor of such Special Servicer will not, in and of itself,
result in a downgrading, withdrawal or qualification of the then-current ratings
provided by the Rating Agencies in respect to any Class of then outstanding
Certificates that is rated. No penalty or fee shall be payable to the terminated
Special Servicer with respect to any termination pursuant to this Section
7.01(d). All costs and expenses of any such termination made without cause shall
be paid by the Holders of the Controlling Class.
(e) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions as are required by them in order to prevent the
Certificates being placed on "watch" status or downgraded due to servicing or
special servicing concerns by either Rating Agency.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to Subsection (a) of the first sentence of
Section 6.04 or receives a notice of termination for cause pursuant to Section
7.01(a), and provided that no acceptable successor has been appointed within the
time period specified in Section 7.01(c), the Trustee shall be the successor to
the Servicer and the Servicer shall be the successor to the Special Servicer,
until such successor to the Special Servicer is appointed by the Directing
Certificateholder as provided in Section 7.01(d), as applicable, in all respects
in its capacity as Servicer or Special Servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to, and have
the benefit of, all of the rights, (subject to Section 3.11 and Section 6.03)
benefits, responsibilities, duties, liabilities and limitations on liability
relating thereto and that arise thereafter placed on or for the benefit of the
Servicer or Special Servicer by the terms and provisions hereof; provided,
however, that any failure to perform such duties or responsibilities caused by
the terminated party's failure under Section 7.01 to provide information or
moneys required hereunder shall not be considered a default by such successor
hereunder. The appointment of a successor Servicer shall not affect any
liability of the predecessor Servicer which may have arisen prior to its
termination as Servicer, and the appointment of a successor Special Servicer
shall not affect any liability of the predecessor Special Servicer which may
have arisen prior to its termination as Special Servicer. The Trustee or
Servicer, as applicable, in its capacity as successor to the Servicer or the
Special Servicer, as the case may be, shall not be liable for any of the
representations and warranties of the Servicer or the Special Servicer,
respectively, herein or in any related document or agreement, for any acts or
omissions of the predecessor Servicer or Special Servicer or for any losses
incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall the
Trustee or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, including but
not limited to any income or other benefit from any Permitted Investment
pursuant to Section 3.06, and subject to Section 3.11, the Servicer as successor
to the Special Servicer shall be entitled to the Special Servicing Fees to which
the Special Servicer would have been entitled if the Special Servicer had
continued to act hereunder. Should the Trustee or the Servicer, as applicable,
succeed to the capacity of the Servicer or the Special Servicer, as the case may
be, the Trustee or the Servicer, as applicable, shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the contrary,
but only with respect to actions taken by it in its role as successor Servicer
or successor Special Servicer, as the case may be, and not with respect to its
role as Trustee or Servicer, as applicable, hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to act as successor to the
Servicer, or shall, if it is unable to so act, or if the Trustee is not approved
as a servicer by each Rating Agency, or if the Directing Certificateholder or
the Holders of Certificates entitled to at least 51% of the Voting Rights so
request in writing to the Trustee, promptly appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution which meets the criteria set forth in Section 6.04 and otherwise
herein, as the successor to the Servicer or the Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer or Special Servicer hereunder. No appointment of
a successor to the Servicer or the Special Servicer hereunder shall be effective
until the assumption in writing by the successor to the Servicer or the Special
Servicer of all its responsibilities, duties and liabilities hereunder that
arise thereafter and upon Rating Agency confirmation, and which appointment has
been approved by the Directing Certificateholder, such approval not to be
unreasonably withheld. Pending appointment of a successor to the Servicer or the
Special Servicer hereunder, unless the Trustee or the Servicer, as applicable,
shall be prohibited by law from so acting, the Trustee or the Servicer, as
applicable, shall act in such capacity as herein above provided. In connection
with such appointment and assumption of a successor to the Servicer or Special
Servicer as described herein, the Trustee or the Servicer, as applicable, may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder. The
Trustee, the Servicer or the Special Servicer (whichever is not the terminated
party) and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Any costs
and expenses associated with the transfer of the servicing function (other than
with respect to a termination without cause) under this Agreement shall be borne
by the predecessor servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Paying Agent
shall give prompt written notice thereof to Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Paying Agent
would be deemed to have notice of the occurrence of such an event in accordance
with Section 8.02(vii), the Paying Agent shall transmit by mail to the Depositor
and all Certificateholders notice of such occurrence, unless such default shall
have been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 662/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Paying Agent of the occurrence of such Event of Default;
provided, however, that an Event of Default under clause (i) of Section 7.01(a)
may be waived only by all of the Certificateholders of the affected Classes.
Upon any such waiver of an Event of Default, such Event of Default shall cease
to exist and shall be deemed to have been remedied for every purpose hereunder.
Upon any such waiver of an Event of Default by Certificateholders, the Trustee
shall be entitled to recover all costs and expenses incurred by it in connection
with enforcement action taken with respect to such Event of Default prior to
such waiver from the Trust Fund. No such waiver shall extend to any subsequent
or other Event of Default or impair any right consequent thereon except to the
extent expressly so waived. Notwithstanding any other provisions of this
Agreement, for purposes of waiving any Event of Default pursuant to this Section
7.04, Certificates registered in the name of the Depositor or any Affiliate of
the Depositor shall be entitled to the same Voting Rights with respect to the
matters described above as they would if any other Person held such
Certificates.
Section 7.05 Trustee as Maker of Advances.
In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days following such
failure by the Servicer with respect to Servicing Advances resulting in an Event
of Default under Section 7.01(a)(iii) hereof to the extent a Responsible Officer
of the Trustee has actual knowledge of such failure with respect to such
Servicing Advances and (y) by noon, New York City time, on the related
Distribution Date with respect to P&I Advances pursuant to the Paying Agent's
notice of failure pursuant to Section 4.03(a) unless such failure has been
cured. With respect to any such Advance made by the Trustee, the Trustee shall
succeed to all of the Servicer's rights with respect to Advances hereunder,
including, without limitation, the Servicer's rights of reimbursement and
interest on each Advance at the Reimbursement Rate, and rights to determine that
a proposed Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the
case may be, (without regard to any impairment of any such rights of
reimbursement caused by such Servicer's default in its obligations hereunder);
provided, however, that if Advances made by both the Trustee and the Servicer
shall at any time be outstanding, or any interest on any Advance shall be
accrued and unpaid, all amounts available to repay such Advances and the
interest thereon hereunder shall be applied entirely to the Advances outstanding
to the Trustee, until such Advances shall have been repaid in full, together
with all interest accrued thereon, prior to reimbursement of the Servicer for
such Advances. The Trustee shall be entitled to conclusively rely on any notice
given with respect to a Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE AND THE PAYING AGENT
Section 8.01 Duties of Trustee and Paying Agent.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee or the Paying Agent, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee or the Paying Agent which are
specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement. If any such instrument is
found not to conform to the requirements of this Agreement in a material manner,
the Trustee or the Paying Agent shall notify the party providing such instrument
and requesting the correction thereof. The Trustee or the Paying Agent shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Servicer or the Special Servicer or another Person, and accepted
by the Trustee or the Paying Agent in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee or the Paying Agent from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct or bad faith; provided,
however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) Neither the Trustee nor the Paying Agent shall be liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee or the Paying Agent, respectively,
unless it shall be proved that the Trustee or the Paying Agent,
respectively, was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25% of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement (unless a
higher percentage of Voting Rights is required for such action).
(d) The Paying Agent shall promptly make available to the Companion
Holder all reports via its Internet Website that the Paying Agent has made
available to Certificateholders under this Agreement to the extent such reports
relate to AB Mortgage Loans or the One Post Office Square Whole Loan, as
applicable.
Section 8.02 Certain Matters Affecting the Trustee and the Paying
Agent.
Except as otherwise provided in Section 8.01:
(i) The Trustee and the Paying Agent may rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee and the Paying Agent may consult with counsel and
the written advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
therewith;
(iii) Neither the Trustee nor the Paying Agent shall be under any
obligation to exercise any of the trusts or powers vested in it by this
Agreement or to make any investigation of matters arising hereunder or to
institute, conduct or defend any litigation hereunder or in relation
hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee or the Paying
Agent, as applicable, reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; neither
the Trustee nor the Paying Agent shall be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) Neither the Trustee nor the Paying Agent shall be liable for
any action reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) Prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, neither
the Trustee nor the Paying Agent shall be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 50% of the Voting
Rights; provided, however, that if the payment within a reasonable time to
the Trustee or the Paying Agent of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Paying Agent, respectively, not reasonably
assured to the Trustee or the Paying Agent by the security afforded to it
by the terms of this Agreement, the Trustee or the Paying Agent,
respectively, may require reasonable indemnity from such requesting
Holders against such expense or liability as a condition to taking any
such action. The reasonable expense of every such reasonable examination
shall be paid by the requesting Holders;
(vi) The Trustee or the Paying Agent may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided, however, that the appointment of
such agents or attorneys shall not relieve the Trustee or the Paying Agent
of its duties or obligations hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement;
(viii) Neither the Trustee nor the Paying Agent shall be responsible
for any act or omission of the Servicer or the Special Servicer (unless
the Trustee is acting as Servicer or Special Servicer, as the case may be
in which case the Trustee shall only be responsible for its own actions as
Servicer or Special Servicer) or of the Depositor; and
(ix) In performing its obligations under this Agreement, including
but not limited to Section 4.02(e), neither the Trustee, the Paying Agent,
on behalf of the Trust, nor the Depositor or otherwise, shall be
responsible or liable for compliance with any reporting or filing
requirement under any state or federal securities laws, except to the
extent specifically set forth in this Agreement.
Section 8.03 Trustee and Paying Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee or the Paying Agent in Sections 2.02 and 2.05
and the signature, if any, of the Certificate Registrar and Authenticating Agent
set forth on any outstanding Certificate, shall be taken as the statements of
the Depositor, the Servicer or the Special Servicer, as the case may be, and the
Trustee or the Paying Agent assume no responsibility for their correctness.
Neither the Trustee nor the Paying Agent makes any representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than as
to the signature, if any, of the Trustee or the Paying Agent set forth thereon)
or of any Mortgage Loan or related document. Neither the Trustee nor the Paying
Agent shall be accountable for the use or application by the Depositor of any of
the Certificates issued to it or of the proceeds of such Certificates, or for
the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Servicer, the Special Servicer or in the case of the Trustee,
the Paying Agent (unless the Trustee is acting as Paying Agent). The Trustee and
the Paying Agent shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor, the Servicer or the Special Servicer and
accepted by the Trustee, or the Paying Agent, as applicable, in good faith,
pursuant to this Agreement.
Section 8.04 Trustee or Paying Agent May Own Certificates.
The Trustee or the Paying Agent each in its individual capacity, not
as Trustee or Paying Agent, may become the owner or pledgee of Certificates, and
may deal with the Depositor, the Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or Paying Agent.
Section 8.05 Fees and Expenses of Trustee and Paying Agent;
Indemnification of Trustee and the Paying Agent.
(a) As compensation for the performance of their respective duties
hereunder, the Trustee will be paid the Trustee Fee and the Paying Agent will be
paid the Paying Agent Fee, in each case, equal to the Trustee's and the Paying
Agent's respective portion of one month's interest at the Trustee Fee Rate,
which shall cover recurring and otherwise reasonably anticipated expenses of the
Trustee and the Paying Agent, respectively. The Trustee Fee and the Paying Agent
Fee shall be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each
Mortgage Loan and REO Loan, the Trustee Fee and the Paying Agent Fee shall
accrue from time to time at the Trustee's and the Paying Agent's respective
portion of Trustee Fee Rate and shall be computed on the basis of the Stated
Principal Balance of such Mortgage Loan and a 360-day year consisting of twelve
30-day months. The Trustee Fee and the Paying Agent Fee (which shall not be
limited to any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's and the Paying Agent's,
respectively, sole form of compensation 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 of the Trustee and the Paying Agent, respectively,
hereunder. No Trustee Fee shall be payable with respect to the Companion Loans.
(b) The Trustee, the Paying Agent and any director, officer,
employee or agent of the Trustee and the Paying Agent, respectively, shall be
entitled to be indemnified and held harmless by the Trust Fund (to the extent of
amounts on deposit in the Certificate Account, Loan REMIC Distribution Account
or Lower-Tier Distribution Account from time to time) against any loss,
liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement, and expenses incurred in becoming successor servicer or
successor Special Servicer, to the extent not otherwise paid hereunder) arising
out of, or incurred in connection with, any act or omission of the Trustee or
the Paying Agent, respectively, relating to the exercise and performance of any
of the powers and duties of the Trustee or the Paying Agent, respectively,
hereunder; provided, however, that none of the Trustee, the Paying Agent nor any
of the other above specified Persons shall be entitled to indemnification
pursuant to this Section 8.05(b) for (i) allocable overhead, (ii) expenses or
disbursements incurred or made by or on behalf of the Trustee or the Paying
Agent, respectively, in the normal course of the Trustee's or the Paying Agent,
respectively, performing its duties in accordance with any of the provisions
hereof, which are not "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or
liability specifically required to be borne thereby pursuant to the terms hereof
or (iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's or the
Paying Agent, respectively, obligations and duties hereunder, or by reason of
negligent disregard of such obligations or duties, or as may arise from a breach
of any representation, warranty or covenant of the Trustee or the Paying Agent,
respectively, made herein. The provisions of this Section 8.05(b) shall survive
the termination of this Agreement and any resignation or removal of the Trustee
or the Paying Agent, respectively, and appointment of a successor thereto. The
foregoing indemnity shall also apply to the Paying Agent in its capacities of
Certificate Registrar and Authenticating Agent.
Section 8.06 Eligibility Requirements for Trustee and the Paying
Agent.
The Trustee and Paying Agent hereunder shall at all times be, and
will be required to resign if it fails to be, (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the United States of America, authorized under
such laws to exercise corporate trust powers and to accept the trust conferred
under this Agreement, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer or the Special Servicer
(except during any period when the Trustee is acting as, or has become successor
to, the Servicer or the Special Servicer, as the case may be, pursuant to
Section 7.02), (ii) an institution insured by the Federal Deposit Insurance
Corporation and (iii) with respect to the Trustee only, an institution whose
long-term senior unsecured debt is rated "Aa3" by Xxxxx'x and "AA-" by S&P (or
such entity as would not, as evidenced in writing by such Rating Agency, result
in the qualification, downgrading or withdrawal of any of the ratings then
assigned thereby to the Certificates).
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 the event the place of business from which the Paying Agent
administers the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan REMIC or in
which the Trustee's office is located is in a state or local jurisdiction that
imposes a tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Paying Agent or
the Trustee, as applicable shall elect either to (i) resign immediately in the
manner and with the effect specified in Section 8.07, (ii) pay such tax at no
expense to the Trust or (iii) administer the Upper-Tier REMIC, the Lower-Tier
REMIC and the Loan REMIC from a state and local jurisdiction that does not
impose such a tax.
Section 8.07 Resignation and Removal of the Trustee and Paying
Agent.
(a) The Trustee and 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 Servicer, the Special Servicer and to all Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or paying agent acceptable to the Servicer and the Directing
Certificateholder by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee or Paying Agent and to the successor trustee
or paying agent. A copy of such instrument shall be delivered to the Servicer,
the Special Servicer, the Certificateholders and the Trustee or Paying Agent, as
applicable, by the Depositor. If no successor trustee or paying agent shall have
been so appointed and have accepted appointment within 30 days after the giving
of such notice of resignation, the resigning Trustee or Paying Agent may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee or Paying Agent shall cease to be
eligible in accordance with the provisions of Section 8.06 and shall fail to
resign after written request therefor by the Depositor or the Servicer, or if at
any time the Trustee or Paying Agent shall become incapable of acting, or shall
be adjudged bankrupt or insolvent, or a receiver of the Trustee or Paying Agent
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or Paying Agent or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, or if the Trustee or
Paying Agent (if different than the Trustee) shall fail (other than by reason of
the failure of either the Servicer or the Special Servicer to timely perform its
obligations hereunder or as a result of other circumstances beyond the Trustee's
or Paying Agent's, as applicable, reasonable control), to timely publish any
report to be delivered, published or otherwise made available by the Trustee or
Paying Agent, as applicable, pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee or Paying Agent
(if different from the Trustee) fails to make distributions required pursuant to
Sections 3.05(c), 4.01 or 9.01, then the Depositor may remove the Trustee or
Paying Agent, as applicable, and appoint a successor trustee or paying agent
acceptable to the Servicer or paying agent acceptable to the Trustee or Paying
Agent, as applicable, by written instrument, in duplicate, which instrument
shall be delivered to the Trustee or Paying Agent so removed and to the
successor trustee or paying agent in the case of the removal of the Trustee or
Paying Agent. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee or Paying Agent and appoint a
successor trustee or paying agent by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Servicer, one
complete set to the Trustee or Paying Agent so removed and one complete set to
the successor so appointed. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the remaining Certificateholders by the
Servicer.
(d) Any resignation or removal of the Trustee or Paying Agent and
appointment of a successor Trustee or Paying Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee or Paying Agent as provided in Section
8.08.
Upon any succession of the Trustee or Paying Agent under this
Agreement, the predecessor Trustee or Paying Agent shall be entitled to the
payment of accrued and unpaid compensation and reimbursement as provided for
under this Agreement for services rendered and expenses incurred (including
without limitation, unreimbursed Advances). No Trustee or Paying Agent shall be
personally liable for any action or omission of any successor Trustee or Paying
Agent.
Section 8.08 Successor Trustee or Paying Agent.
(a) Any successor Trustee or Paying Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Paying Agent an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee or Paying Agent shall become effective and
such successor Trustee or Paying Agent without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee or Paying Agent herein. The predecessor Trustee shall deliver
to the successor trustee all Mortgage Files and related documents and statements
held by it hereunder (other than any Mortgage Files at the time held on its
behalf by a Custodian, which Custodian, at Custodian's option shall become the
agent of the successor Trustee), and the Depositor, the Servicer, the Special
Servicer and the predecessor Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee or successor paying agent shall accept
appointment as provided in this Section 8.08 unless at the time of such
acceptance such successor trustee or successor paying agent, as applicable,
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee or
successor paying agent as provided in this Section 8.08, the Servicer shall mail
notice of the succession of such trustee or paying agent, as applicable, to the
Depositor and the Certificateholders. If the Servicer fails to mail such notice
within 10 days after acceptance of appointment by the successor Trustee or
successor paying agent, as applicable, such successor trustee or successor
paying agent, shall cause such notice to be mailed at the expense of the
Servicer.
Section 8.09 Merger or Consolidation of Trustee or Paying Agent.
Any Person into which the Trustee or the 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 the Trustee or the Paying Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Paying Agent shall be the
successor of the Trustee or the Paying Agent, as applicable, hereunder;
provided, that, in the case of the Trustee, such successor Person shall be
eligible under the provisions of Section 8.06, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Trustee or the Paying
Agent, as applicable, will provide notice of such event to the Servicer, the
Special Servicer, the Depositor and the Rating Agencies.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such appointment within 15 days after the receipt by it of a request
to do so, or in case an Event of Default shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof. All co-trustee fees shall be payable out of
the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians.
The Trustee may, with the consent of the Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall have combined capital and surplus of at
least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Each Custodian shall be subject to the same obligations and
standard of care as would be imposed on the Trustee hereunder in connection with
the retention of Mortgage Files directly by the Trustee. The appointment of one
or more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Paying Agent and the Trustee three copies of any private placement memorandum or
other disclosure document used by the Depositor or its Affiliate in connection
with the offer and sale of the Class of Certificates to which such
Non-Registered Certificate relates. In addition, if any such private placement
memorandum or disclosure document is revised, amended or supplemented at any
time following the delivery thereof to the Trustee and the Paying Agent, the
Depositor promptly shall inform the Trustee of such event and shall deliver to
the Paying Agent and the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Paying Agent (or
with respect to item (ii)(j) below, the Trustee) shall maintain at its offices
primarily responsible for administering the Trust Fund and shall, upon
reasonable advance notice, make available during normal business hours for
review by any Holder of a Certificate, the Depositor, the Servicer, the Special
Servicer, any Rating Agency or any other Person to whom the Paying Agent (or the
Trustee, if applicable) believes such disclosure is appropriate, originals or
copies of the following items: (i) in the case of a Holder or prospective
transferee of a Non-Registered Certificate, any private placement memorandum or
other disclosure document relating to the Class of Certificates to which such
Non-Registered Certificate belongs, in the form most recently provided to the
Paying Agent and (ii) in all cases, (a) this Agreement and any amendments hereto
entered into pursuant to Section 11.01, (b) all statements required to be
delivered to Certificateholders of the relevant Class pursuant to Section 4.02
since the Closing Date, (c) all Officer's Certificates delivered to the Trustee
and the Paying Agent since the Closing Date pursuant to Section 3.13, (d) all
accountants' reports delivered to the Trustee and the Paying Agent since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Trustee and the Paying Agent and Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a), (f) as to each Mortgage Loan pursuant to which the
related Mortgagor is required to deliver such items or the Special Servicer has
otherwise acquired such items, the most recent annual operating statement and
rent roll of the related Mortgaged Property and financial statements of the
related Mortgagor and any other reports of the Mortgagor collected by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Paying Agent pursuant to Section 3.12(c), together with the accompanying written
reports to be prepared by the Special Servicer and delivered to the Paying Agent
pursuant to Section 3.12(b), (g) any and all notices, reports and Environmental
Assessments delivered to the Paying Agent with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan as to which the environmental testing
contemplated by Section 3.09(c) revealed that either of the conditions set forth
in clauses (i) and (ii) of the first sentence thereof was not satisfied (but
only for so long as such Mortgaged Property or the related Mortgage Loan are
part of the Trust Fund), (h) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Servicer or the Special
Servicer and delivered to the Paying Agent pursuant to Section 3.20 (but only
for so long as the affected Mortgage Loan is part of the Trust Fund), (i) any
and all Officer's Certificates delivered to the Paying Agent to support the
Servicer's determination that any P&I Advance or Servicing Advance was or, if
made, would be a Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as the case may be, (j) any and all of the Mortgage Loan documents contained in
the Mortgage File, (k) any and all Appraisals obtained pursuant to the
definition of "Appraisal Reduction" herein, (l) information regarding the
occurrence of Servicing Transfer Events as to the Mortgage Loans and (m) any and
all Sub-Servicing Agreements and any amendments thereto and modifications
thereof. Copies of any and all of the foregoing items will be available from the
Paying Agent upon request; provided, however, that the Paying Agent (or the
Trustee, if applicable) shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies,
except in the case of copies provided to the Directing Certificateholder or the
Rating Agencies, which shall be free of charge (except for extraordinary or
duplicate requests). In addition, without limiting the generality of the
foregoing, any Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificateholder may upon request from the Paying Agent obtain a copy of any
factual report (other than the Asset Status Report) delivered to the Rating
Agencies under this Agreement. Nothing contained in this Section 8.12(a) shall
be construed to limit the reports and information described on Exhibit N
attached hereto and required to be delivered to the Directing Certificateholder
without charge. The Class PS-1, Class PS-2, Class PS-3, Class PS-4, Class PS-5,
Class PS-6 and Class PS-7 Certificates may, with respect to the One Post Office
Square Whole Loan, upon request of the Paying Agent obtain a copy of any factual
report (other than the Asset Status Report) delivered to the Rating Agencies
under this Agreement.
(b) The Paying Agent shall make available to certain financial
market publishers, which initially shall be Bloomberg, L.P., on a monthly basis,
all CMSA reports and any other reports required to be delivered by the Paying
Agent pursuant to Article IV hereof. If any such information is provided on or
before December 30, 2003, the Paying Agent shall make the Prospectus available
to Bloomberg, L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Paying Agent shall, in accordance with such reasonable rules and procedures as
each may adopt (which may include the requirement that an agreement that
provides that such information shall be used solely for purposes of evaluating
the investment characteristics of the Certificates be executed), also provide
the reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Paying Agent, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the Paying
Agent, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Paying Agent
pursuant to this Section 8.12, the Paying Agent shall be entitled to indicate
the source of such information and the Paying Agent may affix thereto any
disclaimer it deems appropriate in its discretion. The Paying Agent shall notify
Certificateholders of the availability of any such information in any manner as
it, in its sole discretion, may determine. In connection with providing access
to or copies of the items described in the preceding paragraph, the Paying Agent
may require (a) in the case of Certificate Owners, a confirmation executed by
the requesting Person substantially in form and substance reasonably acceptable
to the Paying Agent, as applicable, generally to the effect that such Person is
a beneficial holder of Certificates, is requesting the information solely for
use in evaluating such Person's investment in the Certificates and will
otherwise keep such information confidential and (b) in the case of a
prospective purchaser, confirmation executed by the requesting Person in form
and substance reasonably acceptable to the Paying Agent, generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Paying Agent shall not be liable for the dissemination of
information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer, the Paying Agent and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
Section 8.14 Representations and Warranties of the Paying Agent.
(a) The Paying Agent hereby represents and warrants to the
Depositor, the Servicer and the Special Servicer, the Trustee and for the
benefit of the Certificateholders, as of the Closing Date, that:
(i) The Paying Agent is a national banking association, duly
organized under the laws of the United States, duly organized, validly
existing and in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Paying
Agent, and the performance and compliance with the terms of this Agreement
by the Paying Agent, will not violate the Paying Agent's charter and
by-laws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets;
(iii) The Paying Agent has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Paying Agent, enforceable against the Paying
Agent in accordance with the terms hereof, subject to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the rights of
creditors of national banking associations specifically and (b) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The Paying Agent is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Paying Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Paying Agent to perform its obligations under this
Agreement or the financial condition of the Paying Agent; and
(vi) No litigation is pending or, to the best of the Paying Agent's
knowledge, threatened against the Paying Agent which would prohibit the
Paying Agent from entering into this Agreement or, in the Paying Agent's
good faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Paying Agent to perform its obligations
under this Agreement or the financial condition of the Paying Agent.
(b) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Paying Agent, or compliance by the Paying Agent with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which has
not been obtained or cannot be obtained prior to the actual performance by the
Paying Agent of its obligations under this Agreement, and which, if not obtained
would not have a materially adverse effect on the ability of the Paying Agent to
perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Paying Agent the
Depositor, the Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by the
Paying Agent on behalf of the Trustee and required hereunder to be so paid on
the Distribution Date following the earlier to occur of (i) the final payment
(or related Advance) or other liquidation of the last Mortgage Loan or REO
Property subject thereto or (ii) the purchase or other liquidation by the
Holders of the majority of the Controlling Class, the Special Servicer, the
Servicer or the Holders of the Class LR Certificates, in that order of priority,
of all the Mortgage Loans and each REO Property remaining in the Trust Fund at a
price equal to (a) the sum of (1) the aggregate Purchase Price of all the
Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of each REO Property, if any, included in the Trust Fund (such
Appraisals in clause (a)(2) to be conducted by an Independent MAI-designated
appraiser selected and mutually agreed upon by the Servicer and the Trustee, and
approved by more than 50% of the Voting Rights of the Classes of Certificates
then outstanding (other than the Controlling Class unless the Controlling Class
is the only Class of Certificates then outstanding)) (which approval shall be
deemed given unless more than 50% of such Certificateholders object within 20
days of receipt of notice thereof) and (3) the reasonable out-of-pocket expenses
of the Servicer with respect to such termination, unless the Servicer is the
purchaser of such Mortgage Loans, minus (b) solely in the case where the
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances, together with any interest accrued and payable to the Servicer in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d) and any
unpaid Servicing Fees, remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Servicer in connection with such purchase)
and (iii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, 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. James's, living on the date hereof.
The obligations and responsibilities under this Agreement of the
Depositor, the Servicer, the Special Servicer, the Trustee and the Companion
Paying Agent shall terminate with respect to any Companion Loan to the extent
(i) its related AB Morgtgage Loan has been paid in full or is no longer part of
the Trust Fund and (ii) no amounts payable by the related Companion Holder to or
for the benefit of the Trust or any party hereto in accordance with the related
AB Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Servicer or the Holders of the Class LR Certificates, in that
order of priority, may, at their option, elect to purchase all of the Mortgage
Loans (and all property acquired through exercise of remedies in respect of any
Mortgage Loan) and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the
Trustee, the Paying Agent and the other parties hereto no later than 60 days
prior to the anticipated date of purchase; provided, however, that the Servicer,
the Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates may so elect to purchase all of the Mortgage Loans and
each REO Property remaining in the Trust Fund only on or after the first
Distribution Date on which the aggregate Stated Principal Balances of the
Mortgage Loans and any REO Loans remaining in the Trust Fund is less than 1% of
the aggregate Cut-off Date Principal Balance of the Mortgage Loans set forth in
the Preliminary Statement. In the event that the Servicer, the Special Servicer,
the Holders of the Controlling Class or the Holders of the Class LR Certificates
purchases all of the Mortgage Loans and each REO Property remaining in the Trust
Fund in accordance with the preceding sentence, the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class LR
Certificates, as applicable, shall deposit in the Lower-Tier Distribution
Account (or in the Loan REMIC Distribution Account to the extent allocable to
the One Post Office Square B Note) not later than the P&I Advance Date relating
to the Distribution Date on which the final distribution on the Certificates is
to occur, an amount in immediately available funds equal to the above-described
purchase price (exclusive of any portion thereof payable to any Person other
than the Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Certificate Account). In addition, the Servicer shall transfer
to the Loan REMIC Distribution Account and the Lower-Tier Distribution Account
all amounts required to be transferred thereto on such P&I Advance Date from the
Certificate Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution. Upon confirmation that such final
deposits have been made, the Trustee shall release or cause to be released to
the Servicer, the Special Servicer, the Holders of the Controlling Class or the
Holders of the Class LR Certificates, as applicable, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Servicer, and then the Holders of the Class
LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Paying Agent by letter to Certificateholders and each
Rating Agency and, if not previously notified pursuant to this Section 9.01, to
the other parties hereto mailed (a) in the event such notice is given in
connection with the purchase of all of the Mortgage Loans and each REO Property
remaining in the Trust Fund, not earlier than the 15th day and not later than
the 25th day of the month next preceding the month of the final distribution on
the Certificates, or (b) otherwise during the month of such final distribution
on or before the P&I Advance Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated.
After transferring (i) amounts distributable on the Loan REMIC
Regular Interests and the amount of any Yield Maintenance Charges with respect
to the One Post Office Square B Note distributable pursuant to Section 4.01(d)
to the Lower-Tier Distribution Account, and (ii) the Lower-Tier Distribution
Amount and the amount of any Yield Maintenance Charges (other than with respect
to the One Post Office Square B Note) distributable pursuant to Section 4.01(d)
to the Upper-Tier Distribution Account, in each case pursuant to Section
3.04(b), and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Upper-Tier Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered
and to the Holders of the Class NR Certificates any amounts remaining on deposit
in the Excess Interest Distribution Account. Amounts transferred from the Loan
REMIC Distribution Account to the Lower-Tier Distribution Account and from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account as of the
final Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(e)) shall be
allocated for these purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d) and 4.01(e) and shall be distributed in
termination and liquidation of the Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests and the Class LR Certificates in accordance
with Sections 4.01(b), 4.01(d) and 4.01(e). Any funds not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of the Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner and shall be disposed of in accordance with
this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Paying Agent shall specify the date of adoption of the plan
of complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Loan
REMIC's, Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return
pursuant to Treasury Regulations Section 1.860F-1;
(ii) during the 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Paying
Agent on behalf of Trustee shall sell all of the assets of the Trust Fund
to the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates, as applicable, for
cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Loan REMIC Regular
Interests, Uncertificated Lower-Tier Interests and the Certificates, the
Paying Agent shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of the
Lower-Tier REMIC and Loan REMIC) and the Class R Certificates (in the case
of the Upper-Tier REMIC) all cash on hand (other than cash retained to
meet claims), and the Trust Fund and each of the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Paying Agent shall make elections or cause elections to be
made to treat each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC as a REMIC under the Code and, if necessary, under Applicable State and
Local Tax Law. Each such election will be made on Form 1066 or other appropriate
federal tax return for the taxable year ending on the last day of the calendar
year in which the Uncertificated Lower-Tier Interests and the Certificates are
issued. For the purposes of the REMIC election in respect of the Upper-Tier
REMIC, each Class of the Regular Certificates and the Class PS Certificates
shall be designated as the "regular interests" (in the case of the Class NR
Certificates, exclusive of the portion thereof, representing the right to Excess
Interest and Amounts in the Excess Interest Distribution Account) and the Class
R Certificates shall be designated as the sole class of "residual interests" in
the Upper-Tier REMIC. For purposes of the REMIC election in respect of the
Lower-Tier REMIC, each Class of Uncertificated Lower-Tier Interests shall be
designated as the "regular interests" and the Class LR Certificates shall be
designated as the sole class of "residual interests" in the Lower-Tier REMIC.
For purposes of the REMIC election in respect of the Loan REMIC, each Class of
Loan REMIC Regular Interests shall be designated as the "regular interests" and
the Loan REMIC Residual Interest, represented by the Class LR Certificates,
shall be designated as the sole class of "residual interests" in the Loan REMIC.
None of the Special Servicer, the Servicer, the Paying Agent nor the Trustee
shall permit the creation of any "interests" (within the meaning of Section 860G
of the Code) in the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC
other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall act on behalf of each REMIC in relation
to any tax matter or controversy involving any REMIC and shall represent each
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority with respect thereto. The legal
expenses, including without limitation attorneys' or accountants' fees, and
costs of any such proceeding and any liability resulting therefrom shall be
expenses of the Trust Fund and the Paying Agent shall be entitled to
reimbursement therefor out of amounts attributable to the Mortgage Loans and any
REO Properties on deposit in the Certificate Account as provided by Section
3.05(a) unless such legal expenses and costs are incurred by reason of the
Paying Agent's willful misfeasance, bad faith or gross negligence. The Holder of
the largest Percentage Interest in each of the (i) Class R and (ii) Class LR
Certificates shall be designated, in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the (i) Upper-Tier REMIC and
(ii) the Lower-Tier REMIC and the Loan REMIC, respectively. By their acceptance
thereof, the Holders of the largest Percentage Interest in each of the (i) Class
R and (ii) Class LR Certificates hereby agrees to irrevocably appoint the Paying
Agent as their agent to perform all of the duties of the "tax matters person"
for the (i) Upper-Tier REMIC, (ii) the Lower-Tier REMIC and the Loan REMIC,
respectively.
(d) The Paying Agent shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder, and shall cause the Trustee to sign such Tax
Returns in a timely manner. The ordinary expenses of preparing such returns
shall be borne by the Paying Agent without any right of reimbursement therefor.
The Paying Agent agrees to indemnify and hold harmless the Trustee with respect
to any tax or liability arising from the Trustee's signing of Tax Returns that
contain errors or omissions.
(e) The Paying Agent shall provide or cause to be provided (i) to
any Transferor of a Class R Certificate or Class LR Certificate such information
as is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) The Paying Agent shall take such actions and shall cause the
Trust Fund to take such actions as are reasonably within the Paying Agent's
control and the scope of its duties more specifically set forth herein as shall
be necessary to maintain the status of each of the Loan REMIC, the Lower-Tier
REMIC and the Upper-Tier REMIC as a REMIC under the REMIC Provisions (and the
Trustee shall assist the Paying Agent, to the extent reasonably requested by the
Paying Agent to do so). Neither the Servicer nor the Special Servicer shall
knowingly or intentionally take any action, cause the Trust Fund to take any
action or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a tax upon the
Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund
(including but not limited to the tax on "prohibited transactions" as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set forth
in Section 860G(d) of the Code, but not including the tax on "net income from
foreclosure property") (either such event, an "Adverse REMIC Event") unless the
Paying Agent receives an Opinion of Counsel (at the expense of the party seeking
to take such action or, if such party fails to pay such expense, and the Paying
Agent determines that taking such action is in the best interest of the Trust
Fund and the Certificateholders, at the expense of the Trust Fund, but in no
event at the expense of the Paying Agent or the Trustee) to the effect that the
contemplated action will not, with respect to the Trust Fund, the Loan REMIC,
the Lower-Tier REMIC or the Upper-Tier REMIC created hereunder, endanger such
status or, unless the Paying Agent determines in its sole discretion to
indemnify the Trust Fund against such tax, result in the imposition of such a
tax (not including a tax on "net income from foreclosure property"). The Trustee
shall not take or fail to take any action (whether or not authorized hereunder)
as to which the Paying Agent has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such action. The Paying Agent may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement, but in no event at the
expense of the Paying Agent or the Trustee. At all times as may be required by
the Code, the Paying Agent 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 each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC 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.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC,
such tax shall be charged against amounts otherwise distributable to the Holders
of the Certificates, except as provided in the last sentence of this Section
10.01(g); provided that with respect to the estimated amount of tax imposed on
any "net income from foreclosure property" pursuant to Section 860G(c) of the
Code or any similar tax imposed by a state or local tax authority, the Special
Servicer shall retain in the related REO Account a reserve for the payment of
such taxes in such amounts and at such times as it shall deem appropriate (or as
advised by the Trustee in writing), and shall remit to the Servicer such
reserved amounts as the Servicer shall request in order to pay such taxes.
Except as provided in the preceding sentence, the Servicer shall withdraw from
the Certificate Account sufficient funds to pay or provide for the payment of,
and to actually pay, such tax as is estimated to be legally owed by the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization
shall not prevent the Paying Agent from contesting, at the expense of the Trust
Fund (other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Paying Agent is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Section 860F(a) of the Code or the amount of any taxable contribution to
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC after the Startup
Day that is subject to tax under Section 860G(d) of the Code and use such income
or amount, to the extent necessary, to pay such prohibited transactions tax. To
the extent that any such tax (other than any such tax paid in respect of "net
income from foreclosure property") is paid to the Internal Revenue Service or
applicable state or local tax authorities, the Paying Agent shall retain an
equal amount from future amounts otherwise distributable to the Holders of
Residual Certificates (as applicable) and shall distribute such retained
amounts, (x) in the case of the Loan REMIC Regular Interests, to the Lower-Tier
REMIC, and in the case of the Uncertificated Lower-Tier REMIC Interests, to the
Upper-Tier REMIC to the extent they are fully reimbursed for any Collateral
Support Deficit arising therefrom and then to the Holders of the Class LR
Certificates in the manner specified in Section 4.01(b) and (y) in the case of
the Upper-Tier REMIC, to the Holders of Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class P, Class NR, Class X-1, Class X-2 and each Class of the Class PS
Certificates, as applicable, in the manner specified in Section 4.01(a), to the
extent they are fully reimbursed for any Collateral Support Deficit or One Post
Office Square B Note Collateral Support Deficit, as applicable, arising
therefrom and then to the Holders of the Class R Certificates. None of the
Trustee, the Paying Agent, the Servicer or the Special Servicer shall be
responsible for any taxes imposed on the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC except to the extent such taxes arise as a consequence of a
breach of their respective obligations under this Agreement which breach
constitutes willful misfeasance, bad faith, or negligence by such party.
(h) The Paying Agent (but only to the extent, if any, specifically
required to maintain books and records hereunder) shall, for federal income tax
purposes, maintain books and records with respect to each of the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, neither the Paying Agent nor the
Trustee shall accept any contributions of assets to the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC unless the Paying Agent and the
Trustee shall have received an Opinion of Counsel (at the expense of the party
seeking to make such contribution) to the effect that the inclusion of such
assets in the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC will not
(i) cause the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail
to qualify as a REMIC at any time that any Loan REMIC Regular Interests,
Uncertificated Lower-Tier Interests or Certificates are outstanding or (ii)
subject any of the Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither the Paying Agent nor the Trustee shall enter into any
arrangement by which the Trust Fund or the Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC will receive a fee or other compensation for services nor
permit the Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC to receive any income from assets other than "qualified mortgages" as
defined in Section 860G(a)(3) of the Code or "permitted investments" as defined
in Section 860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance or Notional Amount of each Class of Certificates (other than
the Class X-2 Certificates) representing a "regular interest" in the Upper-Tier
REMIC and by which the Lower-Tier Principal Amount of each Class of
Uncertificated Lower-Tier Interests representing a "regular interest" in the
Lower-Tier REMIC, and the Lower-Tier Principal Amount of any Class of Loan REMIC
Regular Interests representing a "regular interest" in the Loan REMIC would be
reduced to zero is the Rated Final Distribution Date, the "latest possible
maturity date" of the Class X-2 Certificates is the Class X-2 Termination Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, imminent default or foreclosure of a
Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Servicer or the Special Servicer, as applicable, has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause the Trust Fund or
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Use of Agents.
(a) The Trustee shall execute all of its obligations and duties
under this Article X through its Corporate Trust Office. The Trustee may execute
any of its obligations and duties under this Article X either directly or by or
through agents or attorneys. The Trustee shall not be relieved of any of its
duties or obligations under this Article X by virtue of the appointment of any
such agents or attorneys.
(b) The Paying Agent may execute any of its obligations and duties
under this Article X either directly or by or through agents or attorneys. The
Paying Agent shall not be relieved of any of its duties or obligations under
this Article X by virtue of the appointment of any such agents or attorneys.
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate
with Paying Agent.
(a) The Depositor shall provide or cause to be provided to the
Paying Agent within ten (10) days after the Depositor receives a request from
the Paying Agent, all information or data that the Paying Agent reasonably
determines to be relevant for tax purposes as to the valuations and issue prices
of the Certificates, including, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) The Servicer and the Special Servicer shall each furnish such
reports, certifications and information, and upon reasonable notice and during
normal business hours, access to such books and records maintained thereby, as
may relate to the Certificates or the Trust Fund and as shall be reasonably
requested by the Paying Agent in order to enable it to perform its duties
hereunder.
Section 10.04 Appointment of REMIC Administrators.
(a) The Paying Agent may appoint at the Paying Agent's expense, one
or more REMIC Administrators, which shall be authorized to act on behalf of the
Paying Agent in performing the functions set forth in Section 10.01 herein. The
Paying Agent shall cause any such REMIC Administrator to execute and deliver to
the Paying Agent an instrument in which such REMIC Administrator shall agree to
act in such capacity, with the obligations and responsibilities herein. The
appointment of a REMIC Administrator shall not relieve the Paying Agent from any
of its obligations hereunder, and the Paying Agent shall remain responsible and
liable for all acts and omissions of the REMIC Administrator. Each REMIC
Administrator must be acceptable to the Paying Agent and must be organized and
doing business under the laws of the United States of America or of any State
and be subject to supervision or examination by federal or state authorities. In
the absence of any other Person appointed in accordance herewith acting as REMIC
Administrator, the Paying Agent hereby agrees to act in such capacity in
accordance with the terms hereof. If LaSalle Bank National Association is
removed as Paying Agent, then LaSalle Bank National Association shall be
terminated as REMIC Administrator.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Paying
Agent or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Servicer, the Special Servicer and
the Depositor. The Paying Agent may at any time terminate the agency of any
REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Servicer, the Certificate Registrar and the Depositor. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time any REMIC Administrator shall cease to be eligible in accordance with the
provisions of this Section 10.04, the Paying Agent may appoint a successor REMIC
Administrator, in which case the Paying Agent shall given written notice of such
appointment to the Servicer and the Depositor and shall mail notice of such
appointment to all Certificateholders; provided, however, that no successor
REMIC Administrator shall be appointed unless eligible under the provisions of
this Section 10.04. Any successor REMIC Administrator upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Paying Agent.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Companion
Holders:
(i) to cure any ambiguity to the extent that it does not materially
and adversely affect any Certificateholder;
(ii) to correct or supplement any provisions of this Agreement which
may be inconsistent with any other provisions of this Agreement or the
Prospectus or to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times
that any Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or any of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or any of the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC, provided that the Trustee and the Paying
Agent have received an Opinion of Counsel (at the expense of the party
requesting such amendment) to the effect that (a) such action is necessary
or desirable to maintain such qualification or to avoid or minimize the
risk of the imposition of any such tax and (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, any Distribution Accounts or REO Account, provided
that (a) the P&I Advance Date shall in no event be later than the Business
Day prior to related Distribution Date, (b) such change shall not, as
evidenced by an Opinion of Counsel (at the expense of the party requesting
such amendment or at the expense of the Trust Fund if the requesting party
is the Trustee or the Paying Agent), adversely affect in any material
respect the interests of any Certificateholder and (c) such change shall
not result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(c)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Loan REMIC, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder not
consenting thereto (y) result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect;
provided that no such amendment changes in any manner the obligations of any
Mortgage Loan Seller under a Mortgage Loan Purchase Agreement without the
consent of the applicable Mortgage Loan Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of Certificates of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of the Holder of such Certificate or which are required to be
distributed to a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standards.
(c) Notwithstanding the foregoing, neither the Trustee, the Paying
Agent, the Depositor, the Servicer nor the Special Servicer will be required to
consent to any amendment hereto without having first received an Opinion of
Counsel (at the Trust Fund's expense) to the effect that such amendment is
permitted hereunder and that such amendment or the exercise of any power granted
to the Servicer, the Depositor, the Special Servicer, the Trustee or any other
specified person in accordance with such amendment will not result in the
imposition of a tax on any portion of the Trust Fund, the Loan REMIC, the
Lower-Tier REMIC, the Upper-Tier REMIC or the Grantor Trust, cause the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC, or cause the Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Paying
Agent shall furnish a statement describing the amendment to each
Certificateholder and the Trustee and shall furnish a copy of such amendment to
each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Paying Agent may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement in furtherance of the rights and interests of Certificateholders,
the cost of any Opinion of Counsel required in connection therewith pursuant to
Section 11.01(a) or (c) shall be payable out of the Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee and the Paying Agent a written notice of default hereunder, and of the
continuance thereof, as herein before provided, and unless also (except in the
case of a default by the Trustee) the Holders of Certificates of any Class
evidencing not less than 25% of the related Percentage Interests in such Class
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. The
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it hereunder or to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, order or direction of any of the
Holders of Certificates unless such Holders have offered to the Trustee
reasonable security against the costs, expenses and liabilities which may be
incurred therein or hereby. It is understood and intended, and expressly
covenanted by each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Holders of Certificates shall have any right in any
manner whatsoever by virtue of any provision of this Agreement to affect,
disturb or prejudice the rights of the Holders of any other of such
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Holder, which priority or preference is not otherwise provided for
herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of this
Section 11.03(c), each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number: (212)
834-6593; (ii) in the case of the Servicer, Xxxxx Fargo Bank, National
Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000;
Attention: Xxxxxxx XxXxxxx, telecopy number: (000) 000-0000; (iii) in the case
of the Special Servicer, ARCap Servicing, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxx 00000; Attention: Xxxxx X. Xxxxxxx, telecopy number: (972)
580-3888; (iv) in the case of the Trustee, U.S. Bank National Association, Xxx
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; Attention: Corporate
Trust Services, X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Series
2003-LN1, telecopy number: (000) 000-0000; (v) in the case of the initial Paying
Agent, the initial Certificate Registrar and the initial Authenticating Agent,
LaSalle Bank National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Securities Trust Services
Group-JPMorgan Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass Through Certificates, Series 2003-LN1, telecopy number: (000) 000-0000;
(vi) in the case of the Rating Agencies, (a) Xxxxx'x Investors Services, Inc.,
00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial
Mortgage Surveillance Group, telecopy number: (000) 000-0000, and (b) Standard &
Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance
Group, telecopy number: (000) 000-0000; (vii) in the case of the Mortgage Loan
Sellers, (a) JPMorgan Chase Bank, 270 Park Avenue, 10th Floor, Attention: Xxxxxx
Xxxxx, Vice President, telecopy number: (000) 000-0000; (b) LaSalle Bank
National Association, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Managing Director RECM, telecopy number: (000) 000-0000; and
(c) Nomura Credit & Capital, Inc., Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx
Xxxx, Xxx Xxxx 00000, Attention: N. Xxxxx XxXxxxx, telecopy number: (646)
587-9804; or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing; (viii) in the case of
the Directing Certificateholder, ARCap CMBS Fund REIT, Inc., 0000 Xxxxx
XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx, 00000 Attention: Xxxxx X. Xxxxxxx,
telecopy number: (000) 000-0000; (ix) in the case of the Maple Gardens Companion
Holder, CBA-Mezzanine Capital Finance, LLC, 00 XXX Xxxxxxx, 0xx xxxxx, Xxxxx
Xxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, telecopy number: (973)
467-9696; (x) in the case of the Companion Holder for the CVS-Commerce Companion
Loan, the CVS-Xxxxxxx Companion Loan, the 150 Technology Companion Loan and the
Sav On-LA Companion Loan, Capital Lease Funding, LLC, 000 Xxxxxx Xxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, telecopy number:
000-000-0000; and (xi) in the case of the Xxx Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxxxx,
XXXX-XXXX, 000 Xxxxx Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxxxxxxx and Xxxxx Xxxxxxx, telecopy number: (000) 000-0000. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificateholder receives
such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Distribution Accounts, the Excess Interest
Distribution Account, the Gain-on-Sale Reserve Account, the Interest Reserve
Account and, if established, the REO Account, and all reinvestment earnings on
such amounts, and all of the Depositor's right, title and interest in and to the
proceeds of any title, hazard or other Insurance Policies related to such
Mortgage Loans and (ii) this Agreement shall constitute a security agreement
under applicable law. This Section 11.07 shall constitute notice to the Trustee
pursuant to any of the requirements of the applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders and
each Companion Holder. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
Section 11.09 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Paying Agent, the
Servicer or the Special Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of inspection
reports and other items delivered to each of the Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Paying Agent shall promptly furnish notice to the Rating
Agencies of (i) any change in the location of the Distribution Accounts and (ii)
the final payment to any Class of Certificateholders.
(e) The Trustee, the Paying Agent, the Servicer and the Special
Servicer, as applicable, shall furnish to each Rating Agency with respect to
each Mortgage Loan such information as the Rating Agency shall reasonably
request and which the Trustee, the Paying Agent, the Servicer or Special
Servicer, can reasonably provide in accordance with applicable law and without
waiving any attorney-client privilege relating to such information or violating
the terms of this Agreement or any Mortgage Loan documents. The Trustee, the
Servicer and Special Servicer, as applicable, may include any reasonable
disclaimer it deems appropriate with respect to such information.
Notwithstanding anything to the contrary herein, nothing in this Section 11.10
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Depositor
By: /S/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Servicer
By: /s/ Xxxxxxx X. XxXxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
ARCAP SERVICING, INC.,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
U.S. BANK NATIONAL ASSOCIATION
Trustee
By: /s/ Xxxxxx X. Xxxxxx Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxx Xx.
Title: Trust Officer
LASALLE BANK NATIONAL ASSOCIATION,
Paying Agent
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of September, 2003, before me, a notary public in and for said
State, personally appeared Xxxx Xxxxxx known to me to be Vice President of X.X.
Xxxxxx Chase Commercial Mortgage Securities Corp., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ Xxxxxxxxx Xxxxxx
----------------------------
Notary Public
[Notarial Seal]
XXXXXXXXX XXXXXX
Notary Public, State of New York
No. 01D16003689
Qualified in New York County
Commission Expires April 14, 0000
XXXXX XX XXXXXXXXXX )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 24th day of September, 2003, before me, a notary public in and or said
State, personally appeared Xxxxxxx X. XxXxxxx known to me to be a Vice President
of Xxxxx Fargo Bank, that executed the within instrument, and also known to me
to be the person who executed it on behalf of such corporation, and acknowledged
to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/S/ Xxxxxxx Xxxxxx Xxxxxxxx
-----------------------------
Notary Public
[Notarial Seal]
XXXXXXX XXXXXX XXXXXXXX
Commission # 1368863
Notary Public - California
San Francisco County
My Comm. Expires Sep. 6, 0000
XXXXX XX XXXXX )
) ss.:
COUNTY OF DALLAS )
On the 29th day of September, 2003, before me, a notary public in and for said
State, personally appeared Xxxxx X. Xxxxxxx known to me to be a President of
ARCap Servicing, Inc., that executed the within instrument, and also known to me
to be the person who executed it on behalf of such national banking association,
and acknowledged to me that such national banking association executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxx
----------------------------
Notary Public
[Notarial Seal]
XXXXXXX XXXXXX
NOTARY PUBLIC STATE OF TEXAS
COMMISSION EXPIRES:
APRIL 22, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
) ss.:
COUNTY OF SUFFOLK )
On the 24th day of September, 2003, before me, a notary public in and for said
Commonwealth, personally appeared Xxxxxx X. Xxxxxx Xx. known to me to be a Trust
Officer of U.S. Bank National Association, that executed the within instrument,
and also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
----------------------------
Notary Public
[Notarial Seal]
XXXXXXXX X. XXXXX
Notary Public
My Commission Expires April 14, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXX )
On the 24th day of September, 2003, before me, a notary public in and for said
State, personally appeared Xxxxx X. Xxxx, known to me to be a Vice President of
LaSalle Bank National Association, that executed the within instrument, and also
known to me to be the person who executed it on behalf of such national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
/s/ Xxxxx X'Xxxx
----------------------------
Notary Public
[Notarial Seal]
"OFFICIAL SEAL"
XXXXX X'XXXX
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 07/09/2005
EXHIBIT A-1
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
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. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: 4.1340% SERVICER: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
DENOMINATION: $[ ]
SPECIAL SERVICER: ARCAP SERVICING, INC.
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE PAYING AGENT: LASALLE BANK NATIONAL
POOLING AND SERVICING AGREEMENT (AS ASSOCIATION
DEFINED HEREIN)
CUSIP NO.: 46625M A5 8
CLOSING DATE: SEPTEMBER 30, 2003
ISIN NO.: US46625MA583
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: 017765906
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1-1
CERTIFICATE BALANCE
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $257,040,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class A-1 Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
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. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625M A6 6
DEFINED HEREIN)
ISIN NO.: US46625MA666
CLOSING DATE: SEPTEMBER 30, 2003
COMMON CODE NO.: 017765957
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 CERTIFICATE NO.: A-2-1
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-2-2
CERTIFICATE BALANCE
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $381,494,000
EXHIBIT A-2
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class A-2 Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS A-1A
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
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. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M X0 0]0 [46625M D9 7]3
DEFINED HEREIN) [U48138 LS 5]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MB573]2 [US46625MD975]3
[USU48138LS51]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: A-1A-1
CERTIFICATE BALANCE
OF THE CLASS A-1A CERTIFICATES
AS OF THE CLOSING DATE: $363,310,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS A-1A CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1A Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
A-1A Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class A-1A Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1A CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
[Reserved]
EXHIBIT A-5
[Reserved]
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS X-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION:
$[ ] TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: [46625M X0 0]0 [46625M D7 1]3
POOLING AND SERVICING AGREEMENT (AS [U48138 LQ 9]1
DEFINED HEREIN)
ISIN NO.: [US46625MB326]2 [US46625MD710]3
CLOSING DATE: SEPTEMBER 30, 2003 [USU48138LQ95]1
FIRST DISTRIBUTION DATE: COMMON CODE: [ ]2 [ ]1
OCTOBER 15, 2003
CERTIFICATE NO.: X-1-[1][2][3]
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF
THE CLOSING DATE: $1,201,612,937
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto 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
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1 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
Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. 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.
This Class X-1 Certificate has no principal balance and will not
receive any distribution of principal.
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 Class X-1 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution 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.
The Certificates are limited in right of payment to, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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 Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS X-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION:
$[ ] TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: [46625M X0 0]0 [46625M D8 9]3
POOLING AND SERVICING AGREEMENT (AS [U48138 LR 7]1
DEFINED HEREIN)
ISIN NO.: [US46625MB409]2 [US46625MD892]3
CLOSING DATE: SEPTEMBER 30, 2003 [USU48138LR78]1
FIRST DISTRIBUTION DATE: COMMON CODE: [ ]2 [ ]1
OCTOBER 15, 2003
CERTIFICATE NO.: X-2-[1]-[2]
APPROXIMATE AGGREGATE NOTIONAL AMOUNT
OF THE CLASS X-1 CERTIFICATES AS OF
THE CLOSING DATE: $1,121,230,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto 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
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1 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
Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate may be entitled to Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement. 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.
This Class X-2 Certificate has no principal balance and will not
receive any distribution of principal.
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 Class X-2 Pass-Through Rate
specified above on the Notional Amount of this Certificate immediately prior to
such Distribution Date, as specified above. Interest allocated to this
Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution 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.
The Certificates are limited in right of payment to, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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 Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of not less than $1,000,000 initial Notional Amount and in
integral multiples of $1 in excess thereof, with one Certificate of such Class
evidencing an additional amount equal to the remainder of the initial Notional
Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Notional Amount of
Definitive Certificates
exchanged or transferred
for, or issued in exchange
for or upon transfer of, an Remaining Notional
interest in this Amount of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS B
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: 46625M A7 4
DEFINED HEREIN)
ISIN NO.: US46625MA740
CLOSING DATE: SEPTEMBER 30, 2003
COMMON CODE NO.: 017765990
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 CERTIFICATE NO.: B-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $34,547,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class B Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders, to cure any ambiguity, to correct
or supplement any provisions therein that may be inconsistent with any other
provisions therein or the Prospectus or the Prospectus Supplement or to correct
any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account or Distribution Accounts or REO Account or
to change the name in which the Certificate Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS C
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: 46625M A8 2
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625MA823
CLOSING DATE: SEPTEMBER 30, 2003 COMMON CODE NO.: 017766015
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: C-1
OCTOBER 15, 2003
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $13,518,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class C Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS D
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION:
$[ ] TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625M A9 0
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625MA906
CLOSING DATE: SEPTEMBER 30, 2003 COMMON CODE NO.: 017766040
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: D-1
OCTOBER 15, 2003
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $30,040,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class D Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS E
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION:
$[ ] TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE CUSIP NO.: 46625M B2 4
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN) ISIN NO.: US46625MB243
CLOSING DATE: SEPTEMBER 30, 2003 COMMON CODE NO.: 017766104
FIRST DISTRIBUTION DATE: CERTIFICATE NO.: E-1
OCTOBER 15, 2003
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $15,020,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class E Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Offered Certificates will be issued in book-entry form through the facilities of
DTC in Denominations of $10,000 initial Certificate Balance, and in integral
multiples of $1 in excess thereof, with one Certificate of each such Class
evidencing an additional amount equal to the remainder of the initial
Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS F
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING PAYING AGENT: LASALLE BANK NATIONAL
AGREEMENT: AS OF SEPTEMBER 30, 2003 ASSOCIATION
CUT-OFF DATE: AS DEFINED IN THE CUSIP NO.: [46625M X0 0]0 [46625M E2
POOLING AND SERVICING AGREEMENT (AS 1]3 [U48138 LT 3]1
DEFINED HEREIN)
ISIN NO.: [US46625MB656]2 [US46625ME213]3
CLOSING DATE: SEPTEMBER 30, 2003 [USU48138LT35]1
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [ ]2 [ ]1
OCTOBER 15, 2003
CERTIFICATE NO.: F-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS F CERTIFICATES
AS OF THE CLOSING DATE: $16,522,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class F Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M X0 0]0 [46625M E3
DEFINED HEREIN) 9]3 [U48138 LU 0]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MB730]2 [US46625ME395]3
[USU48138LU08]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: G-1
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES
AS OF THE CLOSING DATE: $13,519,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class G Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M X0 0]0 [46625M E4
DEFINED HEREIN) 7]3 [U48138 LV 8]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MB813]2 [US46625ME478]3
[USU48138LV80]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: H-1
CERTIFICATE BALANCE
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $16,522,000
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2 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
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 Class H Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS J
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M X0 0]0 [46625M E5
DEFINED HEREIN) 4]3 [U48138 LW 6]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MB995]2 [US46625ME544]3
[USU48138LW63]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: J-1
CERTIFICATE BALANCE
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $6,008,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class J Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS k
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS
DEFINED HEREIN)
CUSIP NO.: [46625M C2 3]2 [46625M E6
CLOSING DATE: SEPTEMBER 30, 2003 2]3 [U48138 LX 4]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003
ISIN NO.: [US46625MC233]2 [US46625ME627]3
APPROXIMATE AGGREGATE [USU48138LX47]1
CERTIFICATE BALANCE
OF THE CLASS K CERTIFICATES COMMON CODE NO.: [ ]2 [ ]1
AS OF THE CLOSING DATE: $12,016,000
CERTIFICATE NO.: K-1
-------------------
1 for Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class K Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS L
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C3 1]2 [46625M E7
DEFINED HEREIN) 0]3 [U48138 LY 2]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC316]2 [US46625ME700]3
[USU48138LY20] 1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: L-1
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $6,008,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class L Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS M
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C4 9]2 [46625M E8
DEFINED HEREIN) 8]3 [U48138 LZ 9]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC498]2 [US46625ME882]3
[USU48138LZ94]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: M-1
CERTIFICATE BALANCE
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $10,514,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class M Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS N
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C5 6]2 [46625M E9
DEFINED HEREIN) 6]3 [U48138 XX 0]0
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC563]2 [US46625ME965]3
[USU48138MA35]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: N-1
CERTIFICATE BALANCE
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $3,004,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
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 Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class N Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS N CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS P
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS P 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C6 4]2 [46625M F2
DEFINED HEREIN) 0]3 [U48138 MB 1]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC647]2 [US46625MF202]3
[USU48138MB18]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: P-1
CERTIFICATE BALANCE
OF THE CLASS P CERTIFICATES
AS OF THE CLOSING DATE: $3,004,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS P CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class P Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination 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 X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class P Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS P CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS NR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE REPRESENTS (1) A REMIC REGULAR
INTEREST AND (2) AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
-------------------
1 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C7 2]2 [46625M F3
DEFINED HEREIN) 8]3 [U48138 XX 0]0
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC720]2 [US46625MF384]3
[USU48138MC90]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: NR-1
CERTIFICATE BALANCE
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $19,526,937
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain on Sale Account and the REO Accounts,
formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class NR
Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate represents (i) a "regular interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended
(the "Code") and (ii) a beneficial interest in a grantor trust under Subpart E,
Part I of Subchapter J of the Code with respect to the Excess Interest. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class NR Pass-Through
Rate specified above 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 Available Distribution 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.
Collateral Support Deficit and Certificate Deferred Interest 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 Collateral Support Deficit or Certificate Deferred Interest 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, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account, the
Simon Collection Account or Distribution Accounts or REO Account or to change
the name in which the Certificate Account or Simon Collection Account is
maintained, provided, however, that the P&I Advance Date shall not be later than
the related Distribution Date, an Opinion of Counsel is obtained to the effect
that such action shall not adversely affect in any material respect the interest
of any Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-22
[Reserved]
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF ONE POST OFFICE SQUARE B NOTE COLLATERAL SUPPORT
DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST UNDER THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C8 0]2 [46625M F4
DEFINED HEREIN) 6]3 [U48138 MD 7]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC803]2 [US46625MF467]3
[USU48138MD73]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-1-1
CERTIFICATE BALANCE
OF THE CLASS PS-1 CERTIFICATES
AS OF THE CLOSING DATE: $11,100,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-1 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-1 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-2
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-2 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M C9 8]2 [46625M F5
DEFINED HEREIN) 3]3 [U48138 ME 5]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MC985]2 [US46625MF533]3
[USU48138ME56]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-2-1
CERTIFICATE BALANCE
OF THE CLASS PS-2 CERTIFICATES
AS OF THE CLOSING DATE: $5,400,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-2 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-2 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-3
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-3 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M D2 2]2 [46625M F6
DEFINED HEREIN) 1]3 [U48138 MF 2]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MD223]2 [US46625MF616]3
[USU48138MF22]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-3-1
CERTIFICATE BALANCE
OF THE CLASS PS-3 CERTIFICATES
AS OF THE CLOSING DATE: $5,300,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-3 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-3 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-3 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-26
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-4
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-4 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M D3 0]2 [46625M F7
DEFINED HEREIN) 9]3 [U48138 MG 0]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MD306]2 [US46625MF798]3
[USU48138MG05]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-4-1
CERTIFICATE BALANCE
OF THE CLASS PS-4 CERTIFICATES
AS OF THE CLOSING DATE: $6,500,000
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1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-4 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-4 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-4 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-4 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-4 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-27
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-5
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-5 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M D4 8]2 [46625M F8
DEFINED HEREIN) 7]3 [U48138 MH 8]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MD488]2 [US46625MF871]3
[USU48138MH87]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-5-1
CERTIFICATE BALANCE
OF THE CLASS PS-5 CERTIFICATES
AS OF THE CLOSING DATE: $6,500,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-5 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-5 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-5 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-5 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-5 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-28
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-6
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-6 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]1
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M D5 5]2 [46625M F9
DEFINED HEREIN) 5]57 [U48138 MJ 4]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MD553]2 [US46625MF954]3
[USU48138MJ44]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-6-1
CERTIFICATE BALANCE
OF THE CLASS PS-6 CERTIFICATES
AS OF THE CLOSING DATE: $10,800,000
-------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS PS-6 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-6 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-6 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-6 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-6 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-29
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS PS-7
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION
AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS PS-7 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. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF ONE POST OFFICE
SQUARE B NOTE COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS 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. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the certificate
registrar for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA) FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE,
SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A
MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH,
A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH A
PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON
OF INVESTMENT IN THE ENTITY BY SUCH A PLAN OR PLANS AND THE APPLICATION OF
DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY
USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE
AND HOLDING OF SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE
EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 OR (B) IF SUCH CERTIFICATE IS
PRESENTED FOR REGISTRATION IN THE NAME OF A PERSON DESCRIBED IN CLAUSES (i) OR
(ii) ABOVE, AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE EFFECT THAT SUCH ACQUISITION AND
HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED PURCHASER OR TRANSFEREE WILL NOT
CONSTITUTE OR RESULT IN A "PROHIBITED TRANSACTION" WITHIN THE MEANING OF ERISA,
SECTION 4975 OF THE CODE OR ANY SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE,
THE CERTIFICATE REGISTRAR, THE SERVICER, THE SPECIAL SERVICER, THE INITIAL
PURCHASERS, THE PAYING AGENT OR THE DEPOSITOR TO ANY OBLIGATION OR LIABILITY
(INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA, SECTION 4975 OF THE CODE OR
ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH IN THE POOLING AND
SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST IN A CERTIFICATE
THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSES (i) OR (ii) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE, BY
PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO HAVE AGREED TO
COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.]58
-------------------
4 For Book-Entry Regulation S Certificates Only.
PASS-THROUGH RATE: VARIABLE IN SERVICER: XXXXX FARGO BANK, NATIONAL
ACCORDANCE WITH THE POOLING AND ASSOCIATION
SERVICING AGREEMENT
SPECIAL SERVICER: ARCAP SERVICING, INC.
DENOMINATION: $[ ]
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING
AGREEMENT: AS OF SEPTEMBER 30, 2003 PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CUSIP NO.: [46625M D6 3]5 [46625M G2
DEFINED HEREIN) 9]6 [U48138 MK 1]1
CLOSING DATE: SEPTEMBER 30, 2003 ISIN NO.: [US46625MD637]2 [US46625MG291]3
[USU48138MK17]1
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003 COMMON CODE NO.: [ ]2 [ ]1
APPROXIMATE AGGREGATE CERTIFICATE NO.: PS-7-1
CERTIFICATE BALANCE
OF THE CLASS PS-7 CERTIFICATES
AS OF THE CLOSING DATE: $9,400,000
-------------------
5 For Book-Entry Rule 144A Only.
6 For Institutional Accredited Investors Only.
CLASS PS-7 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the One Post Office Square B Note due
after the Cut-off Date, all REO Properties and revenues received in respect
thereof, the mortgagee's rights under the Insurance Policies, any Assignment of
Leases, and any guaranties, escrow accounts or other collateral as security for
the One Post Office Square B Note, and such amounts, with respect to the One
Post Office Square B Note, as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Gain on
Sale Account and the REO Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING ONE POST OFFICE SQUARE B NOTE IS GUARANTEED BY
ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class PS-7 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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 Denomination of this Certificate specified
on the face hereof, by the aggregate initial Certificate Balance of the Class
PS-7 Certificates. The Certificates are designated as the X.X. XXXXXX CHASE
COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1 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 Fund.
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. 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.
This Certificate is a "regular interest" in a "real estate mortgage
investment conduit," as those terms are defined, respectively, in Sections
860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended. Each
Holder of this Certificate, by acceptance hereof, agrees to treat, and take no
action inconsistent with the treatment of, this Certificate in accordance with
the preceding sentence for purposes of federal income taxes, state and local
income and franchise taxes and other taxes imposed on or measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Paying Agent shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. 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 Class PS-7 Pass-Through
Rate specified above 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 One Post Office Square B Note Available
Distribution 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.
The One Post Office Square B Note Collateral Support Deficit and
Certificate Deferred Interest on the One Post Office Square B Note shall be
allocated on the applicable Distribution Date to Certificateholders in the
manner set forth in the Pooling and Servicing Agreement. All One Post Office
Square B Note Collateral Support Deficit or Certificate Deferred Interest on the
One Post Office Square B Note 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, among other
things, certain collections and recoveries respecting the One Post Office Square
B Note, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) or the
Paying Agent (with respect to the Distribution Accounts) will be authorized to
make withdrawals therefrom. Amounts on deposit in such accounts may be invested
in Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as 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 the One Post Office Square B Note and administration of the
Trust Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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
Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans and the One Post Office
Square B Note.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS PS-7 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-30
[Reserved]
EXHIBIT A-31
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS R
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE.
OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR A CHURCH PLAN,
AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS,
TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A
PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE: [__________]% ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: ARCAP SERVICING, INC.
AGREEMENT: AS OF SEPTEMBER 30, 2003
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CERTIFICATE NO.: R-1-1
DEFINED HEREIN)
CLOSING DATE: SEPTEMBER 30, 2003
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1 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
Fund.
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. 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.
This Class R Certificate is a "residual interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related 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.
The Certificates are limited in right of payment to, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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.
Each Person who has or who acquires any Ownership Interest in a
Class R Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK 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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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-32
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-LN1, CLASS LR
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR THE LAWS OF ANY
OTHER JURISDICTION. NEITHER THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES
ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE.
OR A GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA, OR A CHURCH PLAN,
AS DEFINED IN SECTION 3(33) OF ERISA, FOR WHICH NO ELECTION HAS BEEN MADE UNDER
SECTION 410(d) OF THE CODE, SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW WHICH IS,
TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE CODE
(EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF OF OR INVESTING THE ASSETS OF A
PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(a)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO
DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH
IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO
FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG
OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED
IN CODE SECTION 860E(e)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-l(c), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
TREASURY REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS SERVICER: XXXXX FARGO BANK, NATIONAL
CERTIFICATE: [__________]% ASSOCIATION
DATE OF POOLING AND SERVICING SPECIAL SERVICER: ARCAP SERVICING, INC.
AGREEMENT: AS OF SEPTEMBER 30, 2003
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT (AS CERTIFICATE NO.: LR-1-1
DEFINED HEREIN)
CLOSING DATE: SEPTEMBER 30, 2003
FIRST DISTRIBUTION DATE:
OCTOBER 15, 2003
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial, multifamily and manufactured housing community mortgage
loans, other than the One Post Office Square B Note (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Distribution Account, the Gain-on-Sale Reserve Account and the REO
Accounts, formed and sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE, THE PAYING AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer,
the Special Servicer and the Paying Agent. A summary of certain of the pertinent
provisions of the Pooling and Servicing Agreement is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein shall have the
meanings assigned thereto 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
of Certificates specified on the face hereof. The Certificates are designated as
the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1 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
Fund.
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. 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.
This Class LR Certificate is a "residual interest" in two "real
estate mortgage investment conduits," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
LR Certificates shall be the "tax matters person" for the Lower-Tier REMIC and
the Loan REMIC pursuant to Treasury Regulations Section 1.860F-4(d), and the
Servicer is hereby irrevocably designated and shall serve as attorney-in-fact
and agent for any such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent in
an amount equal to such Person's pro rata share (based on the Percentage
Interest represented by this Certificate) and to the extent and subject to the
limitations set forth in the Pooling and Servicing Agreement, on the
Distribution Date to the Person in whose name this Certificate is registered as
of the related 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.
The Certificates are limited in right of payment to, among other
things, 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, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) or the Paying Agent (with
respect to the Distribution Accounts) will be authorized to make withdrawals
therefrom. Amounts on deposit in such accounts may be invested in Permitted
Investments. Interest or other income earned on funds in the Certificate Account
will be paid to the Servicer as 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 Fund.
All distributions under the Pooling and Servicing Agreement to a
Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Paying Agent with wire instructions in writing at least five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account of such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date because of
the failure of Certificateholders to tender their Certificates shall be set
aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(h) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Paying Agent may, directly or through an agent, take
appropriate steps to contact the remaining non-tendering Certificateholders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Certificateholders shall be paid out
of such funds. No interest shall accrue or be payable to any Certificateholder
on any amount held in trust as a result of such Certificateholder's failure to
surrender its Certificate(s) for final payment thereof in accordance with
Section 4.01(h) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, 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-in-fact 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.
Each Person who has or who acquires any Ownership Interest in a
Class LR Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent 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 Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar nor any such agents shall
be affected by any notice to the contrary.
The Pooling and Servicing Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Paying Agent and the
Trustee, without the consent of any of the Certificateholders, to cure any
ambiguity, to correct or supplement any provisions therein that may be
inconsistent with any other provisions therein or the Prospectus or the
Prospectus Supplement or to correct any error; to maintain the rating or ratings
assigned to each Class of Certificates by each Rating Agency; to modify,
eliminate or add to any provisions to such extent as is necessary to maintain
the qualification of any of the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times any
Certificate is outstanding or to avoid or minimize the imposition of any tax,
provided, however, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and such action is necessary or desirable to avoid such tax;
to change the timing and/or nature of deposits into the Certificate Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account is maintained, provided, however, that the P&I Advance Date
shall not be later than the related Distribution Date, an Opinion of Counsel is
obtained to the effect that such action shall not adversely affect in any
material respect the interest of any Certificateholder and that such action will
not result in the withdrawal, downgrade or qualification of the then-current
rating by any Rating Agency, as evidenced by a letter from such Rating Agency to
such effect; to modify, eliminate or add to the provisions of Section 5.02(d) of
the Pooling and Servicing Agreement or any other provision thereof restricting
transfer of the Residual Certificates by virtue of their being the REMIC
"residual interests," and such change shall not, as evidenced by an Opinion of
Counsel, cause any of the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC
or any of the Certificateholders (other than the Transferor) to be subject to a
federal tax caused by a Transfer to a Person that is a Disqualified Organization
or a Non-U.S. Person; and to make any other provisions with respect to matters
or questions arising under the Pooling and Servicing Agreement which shall not
be materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of the applicable Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Paying Agent and
the Trustee with the consent of the Holders of Certificates representing not
less than 66 2/3% of the aggregate Percentage Interests of each Class of
Certificates affected by the amendment for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Pooling
and Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment or
remove the requirement to obtain consent of the Companion Holders, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding or the Companion Holders, as applicable;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of the
applicable Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders and all of
the Companion Holders or written confirmation that such amendment would
not result in the downgrading, qualification or withdrawal of ratings
assigned to any Class of Certificates by any Rating Agency, amend the
Servicing Standard.
No amendment shall be made to the Pooling and Servicing Agreement
unless the Trustee or the Paying Agent shall have received an Opinion of Counsel
that such amendment is permitted under the Pooling and Servicing Agreement and
will not cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC to fail to qualify as a REMIC or result in the imposition of a tax on any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the
Grantor Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the Majority of
the Controlling Class or the Holders of the Class LR Certificates may, at their
option, upon 60 days' prior notice given to the Trustee, the Paying Agent and
each of the other parties to the Pooling and Servicing Agreement, to purchase
all, but not less than all, of the Mortgage Loans and the One Post Office Square
B Note and all property acquired in respect of any Mortgage Loan and the One
Post Office Square B Note remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans, the One Post Office Square B Note and any REO
Loans remaining in the Trust Fund is reduced to less than 1% of the aggregate
Cut-off Date Principal Balance of all the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement and
the Trust Fund created thereby (other than the obligation of the Paying Agent to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
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. The Certificate Registrar has executed this Certificate on
behalf of the Trust Fund as Certificate Registrar under the Pooling and
Servicing Agreement and makes no representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the Certificates
or the Mortgage Loans.
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.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Certificate Registrar
under the Pooling and Servicing
Agreement.
By:_______________________________
AUTHORIZED SIGNATORY
Dated: September 30, 2003
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:_______________________________
AUTHORIZED SIGNATORY
SCHEDULE A
Certificate Balance of
Definitive Certificates
exchanged or transferred
for, or issued in exchange Remaining
for or upon transfer of, an Certificate Balance
interest in this of Book-Entry Notation
Date Book-Entry Certificate Certificate Made By
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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
(Cust)
TEN ENT - as tenants by the entireties
Under Uniform Gifts to Minors
JT TEN - as joint tenants with rights
of survivorship and not as Act __________________________
tenants in 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
MORTGAGE LOAN SCHEDULE
(As delivered to the Trustee on the Closing Date)
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group - JPMorgan 2003-LN1
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-LN1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of September 30, 2003 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Xxxxx Fargo Bank, National Association, as Servicer, ARCap
Servicing, Inc., as Special Servicer, U.S. Bank National Association, as
Trustee, and LaSalle Bank National Association, as Paying Agent, on behalf of
the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1 (the
"Certificates") in connection with the transfer by _________________ (the
"Seller") to the undersigned (the "Purchaser") of $_______________ aggregate
Certificate Balance of Class ___ Certificates (the "Certificate"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
[ ] The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (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 its investment in the Certificates, and the
Purchaser and any accounts for which it is acting are each able to
bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by
it for its own account or for one or more accounts (each of which is
an "institutional accredited investor") as to each of which the
Purchaser exercises sole investment discretion. The Purchaser hereby
undertakes to reimburse the Trust Fund for any costs incurred by it
in connection with this transfer.
-------------------
* Purchaser must include one of the following two certifications.
[ ] The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"). The Purchaser is
aware that the transfer is being made in reliance on Rule 144A, and
the Purchaser has had the opportunity to obtain the information
required to be provided pursuant to paragraph (d)(4)(i) of Rule
144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale (i) to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the Securities Act or (iii) (other than with
respect to a Residual Certificate) pursuant to any other exemption from the
registration requirements of the Securities Act, subject in the case of clauses
(ii) and (iii) above to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act,
(y) the receipt by the Certificate Registrar of such other evidence acceptable
to the Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the Securities Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the Securities Act, by
reason of a specified exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the Purchaser's investment intent (or intent to resell to only certain investors
in certain exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Certificate cannot be resold unless it is
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
[ ] The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
[ ] The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Paying Agent (or its agent) with respect to distributions to
be made on the Certificate. The Purchaser has attached hereto [(i) a
duly executed IRS Form W-8BEN (or successor form), which identifies
such Purchaser as the beneficial owner of the Certificate and states
that such Purchaser is not a U.S. Person, (ii) IRS Form W-8IMY (with
all appropriate attachments) or (iii)]*** two duly executed copies
of IRS Form W-8ECI (or successor form), which identify such
Purchaser as the beneficial owner of the Certificate and state that
interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated [IRS Form W-8BEN, IRS
Form W-8IMY or]*** IRS Form W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State thereof or the District of
Columbia, including any entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source or 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 such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
-------------------
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
8. Please make all payments due on the Certificates:****
[ ] (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________________
ABA #:________________________________________________________
Account #:____________________________________________________
Attention:____________________________________________________
[ ] (b) by mailing a check or draft to the following address:
______________________________________________________________
______________________________________________________________
______________________________________________________________
9. If the Purchaser is purchasing a Class R or Class LR Certificate,
the Purchaser is not a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities by a non-U.S. Person.
Very truly yours,
_____________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
Dated:
-------------------
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which [he/she] makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-LN1, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not a
Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), or an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, 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, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any 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 (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the 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 [Upper-Tier REMIC], [the
Lower-Tier REMIC or the Loan REMIC] to fail to qualify as a REMIC, 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. For these purposes, "ERISA Prohibited
Holder" means an employee benefit plan subject to Section 406 of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of
the Code or a governmental plan (as defined in Section 3(32) of ERISA) or a
church plan (as defined in Section 3(33) of ERISA) for which no election has
been made under Section 410(d) of the Code subject to any federal, state or
local law which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or a person acting on behalf of or investing
the assets of such a Plan. For these purposes, "Non-U.S. Person" means any
person other than a U.S. Person (within the meaning of Section 7701(a)(30) of
the Code), unless, with respect to the Transfer of a Residual Certificate, (i)
such person holds such Residual Certificate in connection with the conduct of a
trade or business within the United States and furnishes the Transferor and the
Certificate Registrar with an effective Internal Revenue Service Form W-8ECI or
(ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes; provided,
that a partnership shall be considered a Non-U.S. Person (and clause (i) of this
sentence shall not apply) if any of its interests are owned, directly or
indirectly, through any partnership, trust or other pass-through entity, by any
person that is a Non-U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization, or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated as of September 30, 2003, among X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., as Depositor, Xxxxx Fargo Bank, National
Association, as Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank
National Association, as Trustee, and LaSalle Bank National Association, as
Paying Agent (the "Pooling and Servicing Agreement") as may be required to
further effectuate the restrictions on transfer of the Class [R] [LR]
Certificate to such a Disqualified Organization, or an Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to [the Upper-Tier REMIC], [the Lower-Tier REMIC or the Loan REMIC], the
Transferee agrees to act as "tax matters person" and to perform the functions of
"tax matters person" of [the Upper-Tier REMIC] [the Lower-Tier REMIC or the Loan
REMIC pursuant to Section 10.01(c) of the Pooling and Servicing Agreement, and,
in such event, agrees to the irrevocable designation of the Trustee as the
Transferee's agent in performing the function of "tax matters person."
9. That the Transferee has reviewed, and agrees to be bound by and
to abide by, the provisions of Section 5.02(c) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of the Class [R]
[LR] Certificate.
10. That the Transferee will not cause income from the Class [R][LR]
Certificate to be attributable to, a foreign permanent establishment or fixed
base, within the meaning of an applicable income tax treaty, of the Transferee
or any other U.S. person.
11. Check one of the following:
[ ] That the present value of the anticipated tax liabilities
associated with holding the Class [R] [LR] Certificate does not exceed the sum
of:
(i) the present value of any consideration given to the Transferee
to acquire such Class [R][LR] Certificate;
(ii) the present value of the expected future distributions on such
Class [R] [LR] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Class [R] [LR] Certificate as the related REMIC generates
losses.
For purposes of this calculation, (i) the Transferee is assumed to
pay tax at the highest rate currently specified in Section 11(b) of the Code
(but the tax rate in Section 55(b)(1)(B) of the Code may be used in lieu of the
highest rate specified in Section 11(b) of the Code if the Transferee has been
subject to the alternative minimum tax under Section 55 of the Code in the
preceding two years and will compute its taxable income in the current taxable
year using the alternative minimum tax rate) and (ii) present values are
computed using a discount rate equal to the short-term Federal rate prescribed
by Section 1274(d) of the Code for the month of the transfer and the compounding
period used by the Transferee.
[ ] That the transfer of the Class [R] [LR] Certificate complies
with U.S. Treasury Regulations Sections 1.860G-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Sections 1.860E-1(c)(6)(i), as to
which income from Class [R] [LR] 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 Transferee within the meaning of U.S. Treasury
Regulation Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Transferee will transfer the Class [R] [LR] Certificate
only to another "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of U.S. Treasury
Regulations Sections 1.860G-1(c)(4)(i), (ii) and (iii) and
1.860E-1(c)(5); and
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R] [LR] 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.
[ ] None of the above.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By: __________________________________
[Name of Officer]
[Title of Officer]
By: __________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Transferee, and acknowledged
to me that he [she] executed the same as his [her] free act and deed and the
free act and deed of the Transferee.
Subscribed and sworn before me this ___ day of __________, 20__.
___________________________________
NOTARY PUBLIC
COUNTY OF _________________________
STATE OF __________________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust - CMBS
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
Re: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3, 4 and 10 thereof are not
satisfied or, after conducting a reasonable investigation of the financial
condition of the transferee, that the information contained in paragraphs 3, 4
and 10 thereof is not true.
Very truly yours,
[Transferor]
________________________________
EXHIBIT E
REQUEST FOR RELEASE
__________[Date]
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Trust Services
Re: X.X. Xxxxx Commercial Mortgage Securities Corp, Commercial
Mortgage Pass-Through Certificates, Series 2003-LN1, REQUEST
FOR RELEASE
Dear _______________________,
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under a certain Pooling and Servicing Agreement,
dated as of September 30, 2003 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Xxxxx Fargo Bank, National Association, as Servicer, ARCap Servicing, Inc., as
Special Servicer, LaSalle Bank National Association, as Paying Agent, and you,
as Trustee, the undersigned hereby requests a release of the Mortgage File (or
the portion thereof specified below) held by or on behalf of you as Trustee with
respect to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The [Servicer] [Special
Servicer] hereby certifies that all amounts received in
connection with the Mortgage Loan have been or will be
credited to the Certificate Account pursuant to the
Pooling and Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or unless the Mortgage Loan
is being foreclosed, in which case the Mortgage File (or such portion thereof)
will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[SERVICER] [SPECIAL SERVICER]
By: _________________________________
Name:____________________________
Title:___________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Backed Securities Trust Services Group - JPMorgan 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-LN1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1, Class __
(the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated as of September 30, 2003 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as depositor (the "Depositor"), Xxxxx Fargo Bank, National Association,
as servicer (in such capacity, the "Servicer"), ARCap Servicing, Inc., as
special servicer (the "Special Servicer"), U.S. Bank National Association, as
trustee (the "Trustee") and LaSalle Bank National Association, as paying agent
(the "Paying Agent"). Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of 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 a governmental plan (as defined in Section
3(32) of ERISA) or a church plan (as defined in Section 3(33) of ERISA) for
which no election has been made under Section 410(d) of the Code, subject to any
federal, state or local law ("Similar Law") which is, to a material extent,
similar to the foregoing provisions of ERISA or the Code (each a "Plan") or (b)
a person acting on behalf of or using the assets of any such Plan (including an
entity whose underlying assets include Plan assets by reason of investment in
the entity by such a Plan or Plans and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its "insurance company general account" (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption ("PTCE") 95-60) under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of PTCE 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not constitute or result in a "prohibited transaction" within the meaning of
ERISA, Section 4975 of the Code or any Similar Law, and will not subject the
Trustee, the Paying Agent, the Certificate Registrar, the Servicer, the Special
Servicer, the Dealers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Pooling and Servicing
Agreement, which Opinion of Counsel shall not be at the expense of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Paying Agent,
the Dealers, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 20__.
Very truly yours,
_____________________________________
[The Purchaser]
By: _________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
EXHIBIT H
FORM OF OMNIBUS ASSIGNMENT
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "U.S. Bank National Association, as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1" (the
"Assignee"), having an office at Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attn: Corporate Trust Services, Ref X.X. Xxxxxx Commercial
Mortgage Securities Corp. 2003-LN1, its successors and assigns, all right, title
and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and security
agreement, deed to secure debt and security agreement, or similar security
instrument (the "Security Instrument"), and that certain Promissory Note (the
"Note"), for each of the Mortgage Loans shown on the Mortgage Loan Schedule
attached hereto as Exhibit A, and that certain assignment of leases and rents
given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [ ], 20__.
[NAME OF CURRENT ASSIGNOR]
By:____________________________
Name:
Title:
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1 Class
___
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of September 30, 2003 (the "Pooling
and Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Xxxxx Fargo Bank, National Association, as
Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank National
Association, as Trustee, and LaSalle Bank National Association, as Paying Agent,
on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1, Class __
(the "Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance] [Notional Amount]of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance] [Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By: ______________________________
Name:
Title:
Dated:
-------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1 Class
__
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) the Pooling
and Servicing Agreement, dated as of September 30, 2003 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Xxxxx Fargo Bank, National Association, as
Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank National
Association, as Trustee, and LaSalle Bank National Association, as Paying Agent,
on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1, Class __
(the "Certificates") in connection with the transfer by the undersigned (the
"Transferor") to _________________ (the "Transferee") of $__________________
[Certificate Balance][Notional Amount] of Certificates, in fully registered form
(each, an "Definitive Certificate"), or a beneficial interest of such aggregate
[Certificate Balance][Notional Amount] in the Regulation S Book-Entry
Certificate (the "Book-Entry Certificate") maintained by The Depository Trust
Company or its successor as Depositary under the Pooling and Servicing Agreement
(such transferred interest, in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Name of Transferor]
By: ________________________________
Name:
Title:
Dated:
-------------------
* Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
U.S. Bank National Association
Xxx Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 0000-XX0
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Corporation Commercial
Mortgage Pass-Through Certificates, Series 2003-LN1
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of September 30,
2003, by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation, as
depositor (the "Depositor"), Xxxxx Fargo Bank, National Association, as servicer
(the "Servicer"), ARCap Servicing, Inc., as special servicer (the "Special
Servicer"), U.S. Bank National Association, as trustee (the "Trustee"), and
LaSalle Bank National Association, as paying agent ("Paying Agent"). Capitalized
terms used herein and not otherwise defined shall have the meaning set forth in
the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Servicer's notice confirming
that the exercise of its Purchase Option is effective, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Servicer in exchange for
the release of the Mortgage Loan, the related Mortgaged Property and delivery of
the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably necessary to vest in it or its
designee the ownership of Mortgage Loan [__], together with such other documents
or instruments as the Servicer shall reasonably require to consummate the
purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Servicer' notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(Pursuant to Section 5.2(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1 Class
__
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of September 30, 2003 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Xxxxx Fargo Bank, National Association, as Servicer, ARCap Servicing, Inc., as
Special Servicer, U.S. Bank National Association, as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
-------------------
* Select appropriate depository.
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].**
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By: ______________________________
Name:
Title:
Dated:
-------------------
* Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT L
CLASS X REFERENCE RATES
Distribution Date Reference Date
----------------- --------------
October 2003 5.52555%
November 2003 5.65601%
December 2003 5.47478%
January 2004 5.65303%
February 2004 5.47190%
March 2004 5.47215%
April 2004 5.65318%
May 2004 5.47204%
June 2004 5.65328%
July 2004 5.47214%
August 2004 5.65338%
September 2004 5.65344%
October 2004 5.47230%
November 2004 5.65354%
December 2004 5.47239%
January 2005 5.47244%
February 2005 5.47249%
March 2005 5.47600%
April 2005 5.65377%
May 2005 5.47262%
June 2005 5.65388%
July 2005 5.47272%
August 2005 5.65398%
September 2005 5.65404%
October 2005 5.47287%
November 2005 5.65414%
December 2005 5.47297%
January 2006 5.47303%
February 2006 5.47309%
March 2006 5.47640%
April 2006 5.65442%
May 2006 5.47325%
June 2006 5.65454%
July 2006 5.47337%
August 2006 5.65466%
September 2006 5.65473%
October 2006 5.47355%
November 2006 5.65485%
December 2006 5.47367%
January 2007 5.47372%
February 2007 5.47378%
March 2007 5.47710%
April 2007 5.65514%
May 2007 5.47394%
June 2007 5.65526%
July 2007 5.47406%
August 2007 5.65538%
September 2007 5.65545%
October 2007 5.47425%
November 2007 5.65557%
December 2007 5.47437%
January 2008 5.65570%
February 2008 5.47449%
March 2008 5.47577%
April 2008 5.65588%
May 2008 5.47466%
June 2008 5.65600%
July 2008 5.47627%
August 2008 5.70557%
September 2008 5.70688%
October 2008 5.52704%
November 2008 5.71000%
December 2008 5.52725%
January 2009 5.52735%
February 2009 5.52746%
March 2009 5.53136%
April 2009 5.71054%
May 2009 5.52778%
June 2009 5.71076%
July 2009 5.52799%
August 2009 5.71099%
September 2009 5.71111%
October 2009 5.52833%
November 2009 5.71134%
December 2009 5.52855%
January 2010 5.52866%
February 2010 5.52878%
March 2010 5.53244%
April 2010 5.71191%
May 2010 5.52911%
June 2010 5.70598%
July 2010 5.53129%
August 2010 5.70351%
September 2010 5.71185%
EXHIBITS M-1 through M-13
FORM OF CMSA INVESTOR REPORTING PACKAGE
Available upon request to the Depositor
EXHIBIT M-14
CMSA Investor Reporting Package
Portfolio Review Guidelines
(for the Servicer Watchlist)
------------------------------------------------------------------------------------------------------------------------------------
Property Type: ALL
------------------------------------------------------------------------------------------------------------------------------------
Reference
------------------------------------------------------------------------------------------------------------------------------------
Code Guideline Review Threshold Release Threshold
Financial Conditions
1 A Delinquent P&I Payments > 2 payments. Due Current
1 B Delinquent taxes. Servicer has knowledge that Taxes are brought current including
the taxes are more than 30 all interest and penalties
days past due
1 C Delinquent or Forced Placed Insurance The earlier of greater than Receipt of proof of satisfactory
30 days delinquent or insurance in force
insurance is forced placed.
1 D Outstanding servicing advances (L38 and/or L39) > 30 days delinquent Servicing Advances have been repaid
1 E DSCR Absolute Level based on normalized Net Cash < 1.10; < 1.20 for DSCR above threshold.
Flow. Use yr. End normalized numbers or use the healthcare & lodging;
most recent trailing 12 mos. Normalized or most exclude CTL, ground leases
recent ytd normalized if available. (Ytd and single tenant NNN
normalized should only be used if the property is
not impacted by seasonality issues).
1 F DSCR Decrease from U/W. Absolute Level based on <1.40 and < 75% UW DSCR; DSCR above threshold.
normalized Net Cash Flow. Use yr. End normalized Excludes CTL, ground leases
numbers or use the most recent trailing 12 mos. and single tenant NNN.
Normalized or most recent ytd normalized if
available. (Ytd normalized should only be used if
the property is not impacted by seasonality
issues).
1 G Floater DSCR - DSCR Decrease from U/W or absolute DSCR < .95 or < 70% U/W DSCR or NCF above threshold.
level based on normalized Net Cash Flow. Use yr. stabilized NCF number.
End normalized numbers for the most recent Excludes CTL, ground leases
trailing 12 mos. Normalized or most recent ytd and single tenant NNN
normalized if available. (Ytd normalized should
only be used if the property is not impacted by
seasonality issues).
1 H Defaulted or matured senior lien and/or mechanics When notice received by Default cured or lien paid off
lien in excess of 5% of UPB. Servicer
1 I Defaulted, matured, or discovery of previously When notice received by Default has been cured or loan
undisclosed, subordinate lien including mezzanine Servicer assumed by subordinate lienholder or
debt mezzanine debt is approved by the
Servicer.
1 J Any unplanned draw on a LOC or reserve to pay debt Any Occurrence After funds or LOC replaced if
service. required by the documents.
Borrower Issues
2 A Substantive required repairs reserved for at If required repair is not Satisfactory verification that
closing or otherwise disclosed to Servicer not completed within 60 days repairs have been completed
completed by due date. following the due date
(including extensions
approved by Servicer) and it
is the lesser of 10% of the
UBP or $500,000
2 B Remediation or O & M plan Any knowledge of deficiency When plan deficiencies have been
deficiencies/non-compliance reserved for at that adversely affects the cured
closing or otherwise disclosed to Servicer performance/value of the
property.
2 C Occurrence of servicing trigger event in the Any Occurrence Cure of the event that required
mortgage loan documents (for example: Springing action under the mortgage documents,
Lockbox, Required Loan Pay down, Post Additional or satisfying relevant mortgage loan
Reserves, Trap Excess Cash, Management or provisions or after 6 consecutive
Franchise change based on minimum NOI/DSCR payments without delinquency or the
threshold levels) establishment of reserve, LOC or
lockbox.
2 D Unsubordinated or subordinated ground lease default When notice received by When default cured
Servicer
2 E Expiration of unsubordinated ground lease within 6 Any Occurrence New lease or option has been
months exercised
2 F Operating license or franchise agreement default When notice received by New franchise or license in place, or
Servicer default under franchise or license
has been cured
2 G Bankruptcy of Borrower/owner or guarantor Upon receipt of notice by Bankruptcy resolved or six months
bankruptcy that comes to the knowledge of Servicer after bankruptcy is filed, whichever
Lender/Servicer occurs first.
2 H Federal/State Survey for Nursing Homes that Servicer has not received a Annual survey submitted or deficiency
require the report per the loan documents. new survey within 18 months cured
of the last survey received
by the Servicer or the
latest survey indicates a
deficiency level of F or
higher
Property Condition Issues
3 A Inspection reveals Poor or Not Accessible Any Occurrence Determination by Servicer in its
condition as defined by the MBA/CMSA Property discretion that property deficiencies
Inspection Form have been cured, or access allowed
and inspection completed
3 B Inspection reveals potentially harmful The Servicer becomes aware Determination by Servicer in its
environmental issue in ordinary course of an discretion that property deficiencies
inspection. have been cured
3 C Property affected by major casualty or When Servicer becomes aware Determination by Servicer in its
condemnation proceeding affecting future of a casualty or discretion that all necessary repairs
cashflows. condemnation equal to the have been completed satisfactorily or
lesser of 10% of UPB or that condemnation proceedings have
$500,000 been completed and that the asset can
perform at satisfactory levels
Lease Rollover, Tenant Issues and Vacancy
4 A Occupancy decrease (excludes lodging) < 80% of UW When condition no longer exists
4 B Reduced EGI for all property types (including < 80% U/W EGI and <1.10 DSCR DSCR and EGI above threshold
lodging) Use yr. End normalized numbers or the all property types except
most recent trailing 12 mos. Normalized or most use <80% U/W EGI and <1.20
recent ytd normalized if available. (Ytd for healthcare and lodging
normalized should only be used if the property is
not impacted by seasonality issues).
4 C Single tenant or any tenant with a lease > 30% NRA Single tenant or any one When condition no longer exists
expiring within the next 12 months. tenant > 30% NRA; Excludes
Multifamily, Lodging,
Healthcare, MH Park & Self
Storage as well as fully
amortizing CTL loans when
the lease expires
co-terminus with the loan.
4 D A combination of top 3 tenants with lease The combination of any top 3 When condition no longer exists
expirations within the next 12 months. tenants with lease
expirations within the next
12 months that individually
occupy at least 5% of the
NRA and cumulatively occupy
greater than 30% of the NRA.
4 E Bankruptcy of Licensee, Franchisor, or any > 30% NRA; Excludes When condition no longer exists
combination of top 3 tenants that individually Multifamily, Lodging, MH
occupy at least 5% of the NRA and cumulatively Park & Self Storage; For
occupy greater than 30% of the NRA. For Healthcare Healthcare bankruptcy of
property, the bankruptcy of tenant under master tenant under master lease or
lease or of the management company. of management company.
4 F Major tenant lease is in default, terminated or is > 30% NRA; Excludes When condition no longer exists
dark Multifamily, Lodging, MH
Park & Self Storage; For
Healthcare failure to comply
with Regulatory Requirements
Maturity
5 A Pending loan maturity or anticipated repayment < 90 days Until loans is extended or paid off,
date with balloon balance due or for ARD loans not other WL trigger
or event has occurred.
Other
6 A Any other situation that indicates an increased As determined by Servicer When condition no longer exists
level of default risk that may create potential
losses to investors.
------------------------------------------------------------------------------------------------------------------------------------
EXHIBITS M-15 through M-17
Available upon Request to the Depositor
EXHIBIT N
Controlling Class Certificateholder's Reports Checklist
--------------------------------------------------------------------------------
Information Format Frequency
--------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
(Servicer)*
--------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
(Servicer)*
--------------------------------------------------------------------------------
Other Financials as required Actual PDF/TIF As received
by loan documents (Servicer)
--------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
(Servicer)*
--------------------------------------------------------------------------------
Payments Received After
Determination Date Report Monthly Excel P&I Advance Date
(Servicer) (1)
--------------------------------------------------------------------------------
Mortgage Loans Delinquent Monthly Excel 30th of each month
Report (Servicer) (2)
--------------------------------------------------------------------------------
Interest on Advance Monthly Excel Distribution Date
Reconciliation (Servicer)
--------------------------------------------------------------------------------
CMSA Setup File CMSA IRP Access/Excel Monthly/Distribution
(Issuer/Servicer) Date
--------------------------------------------------------------------------------
CMSA Property File (Servicer) CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
CMSA Loan Periodic Update CMSA IRP Access/Excel Monthly/Distribution
File (Servicer) Date
--------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution
(Servicer) Date
--------------------------------------------------------------------------------
Distribution Statement Monthly Excel/PDF Monthly/Distribution
(Paying Agent) Date
--------------------------------------------------------------------------------
CMSA Bond File (Paying Agent) CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
CMSA Collateral File (Paying CMSA IRP Access/Excel Monthly/Distribution
Agent) Date
--------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution
(Servicer) Date
--------------------------------------------------------------------------------
Operating Statement Analysis CMSA IRP Access/Excel Monthly/Distribution
Report (Servicer)* Date
--------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution
(Servicer)* Date
--------------------------------------------------------------------------------
Documentation Exceptions Quarterly Access/Excel Monthly/Distribution
Report (Trustee) Date
--------------------------------------------------------------------------------
* Submit electronically with ARCap Naming Convention.
Footnotes:
1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in Servicer's opinion, for the mortgage loans continued
delinquency, along with an explanation of Servicer's attempts to cure.
3) ARCap CMBS Fund REIT, Inc. requests that the above information be
organized in ascending Prospectus Loan I.D. order and forwarded on each of
the above listed dates via E-Mail to the following address. CMSA reports
and data files shall be available via the Servicer's or Paying Agent's
Website.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 341 (972) 580-1688 ext. 323
EXHIBIT O
[Reserved]
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(Pursuant to Section 5.2(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1,
Class____
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of September 30, 2003 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Xxxxx Fargo Bank, National Association, as Servicer, ARCap Servicing, Inc., as
Special Servicer, U.S. Bank National Association, as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer and the Special Servicer.
[Insert Name of Transferor]
By: ________________________________
Name:
Title:
Dated:
-------------------
* Insert one of these two provisions, which come from the definition of "off-
shore transaction" in Regulation S.
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING BOOK-ENTRY PERIOD
(Pursuant to Section 5.2(b) of the Pooling and Servicing Agreement)
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1,
Class__
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of September 30, 2003 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Xxxxx Fargo Bank, National Association, as Servicer, ARCap Servicing, Inc., as
Special Servicer, U.S. Bank National Association, as Trustee, and LaSalle Bank
National Association, as Paying Agent, on behalf of the holders of X.X. Xxxxxx
Chase Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-LN1. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
-------------------
* Select appropriate depository.
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Paying Agent,
the Servicer, the Special Servicer and Initial Purchasers of the offering of the
Certificates.
[Insert Name of Transferor]
By: _______________________________________
Name:
Title:
Dated:
EXHIBIT R
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
LaSalle Bank National Association
as Certificate Registrar
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Structured Finance - Securitization Group
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1,
Class__
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of September 30, 2003 (the "Pooling
and Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Xxxxx Fargo Bank, National Association, as
Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank National
Association, as Trustee, and LaSalle Bank National Association, as Paying Agent,
on behalf of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1 in
connection with the transfer by _______________ of a beneficial interest of
$___________ [Certificate Balance] [Notional Amount] in a Book-Entry Certificate
during the Restricted Period to the undersigned (the "Transferee"). The
Transferee desires to beneficially own such transferred interest in the form of
the Regulation S Book-Entry Certificate. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Paying Agent, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated:
EXHIBIT S
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
CERTIFICATION
-------------
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2003-LN1 (the "Trust")
I, Xxxxxx X. Xxxxxxxx, the President and Chief Executive Officer of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., the depositor into the
above-referenced Trust, certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form 8-K
containing distribution or servicing reports filed in respect of periods
included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by this annual report;
3. Based on my knowledge, the distribution or servicing information required to
be provided to the trustee by the servicer and the special servicer under the
pooling and servicing agreement for inclusion in these reports is included in
these reports;
4. Based on my knowledge and upon the annual compliance statement included in
this annual report and required to be delivered to the trustee in accordance
with the terms of the pooling and servicing agreement, and except as disclosed
in this annual report, the servicer and the special servicer have fulfilled
their obligations under the pooling and servicing agreement; and
5. This annual report discloses all significant deficiencies relating to the
servicer's or special servicer's compliance with the minimum servicing standards
based upon the report provided by an independent public accountant, after
conducting a review in compliance with the Uniform Single Attestation Program
for Mortgage Bankers or similar procedure, as set forth in the pooling and
servicing agreement, that is included in this annual report.
In giving the certifications above, I have reasonably relied on information
provided to me by the following unaffiliated parties: Xxxxx Fargo Bank, National
Association, ARCap Servicing, Inc., U.S. Bank National Association and LaSalle
Bank National Association.
Date:
----------------------------------
---------------------------------------
President and Chief Executive Officer
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
EXHIBIT T-1
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY PAYING AGENT
CERTIFICATION
X.X.Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2003-LN1 (the "Trust")
I, [identify the certifying individual], a [title] of LaSalle Bank National
Association, certify to X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the fiscal year [2003],
and all reports on Form 8-K containing distribution or servicing reports filed
in respect of periods included in the year covered by that annual report, of the
Trust;
2. Based on my knowledge, the distribution information in these reports, taken
as a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by that annual report; and
3. Based on my knowledge, the distribution or servicing information provided to
the trustee by the servicer under the pooling and servicing agreement, for
inclusion in these reports is included in these reports.
Date:
----------------------------------
---------------------------------------
[Title]
LaSalle Bank National Association
EXHIBIT T-2
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SERVICER
CERTIFICATION
X.X.Xxxxxx Chase Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2003-LN1 (the "Certificates")
I, [identify the certifying individual], a [title] of Xxxxx Fargo Bank, National
Association, certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
and their officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification in delivering the Certification
required by the pooling and servicing agreement relating to the Certificates
(capitalized terms used herein without definition shall have the meanings
assigned to such terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports relating to the trust fund delivered by
the servicer to the paying agent covering the fiscal year 2003;
2. Based on my knowledge, the servicing information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
last day of the period covered by these servicing reports;
3. Based on my knowledge, the servicing information required to be provided to
the paying agent by the servicer under the pooling and servicing agreement for
inclusion in the reports to be filed by the paying agent is included in the
servicing reports delivered by the servicer to the paying agent;
4. I am responsible for reviewing the activities performed by the servicer under
the pooling and servicing agreement and based upon my knowledge and the annual
compliance review required under section 3.13 of the pooling and servicing
agreement with respect to the servicer, and except as disclosed in the
compliance certificate delivered by the servicer under section 3.13 of the
pooling and servicing agreement, the servicer has fulfilled its obligations
under the pooling and servicing agreement; and
5. The accountant's statement delivered pursuant to section 3.14 of the pooling
and servicing agreement discloses all significant deficiencies relating to the
servicer's compliance with the minimum servicing standards based upon the report
provided by an independent public accountant, after conducting a review in
compliance with the Uniform Single Attestation Program for Mortgage Bankers or
similar procedure, as set forth in the pooling and servicing agreement.
Date:
----------------------------------
---------------------------------------
[Title]
[__]
EXHIBIT T-3
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY SPECIAL SERVICER
CERTIFICATION
X.X.Xxxxxx Xxxxx Commercial Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates
Series 2003-LN1 (the "Certificates")
I, [identify the certifying individual], a [title] of ARCap Servicing, Inc.,
certify to X.X. Xxxxxx Chase Commercial Mortgage Securities Corp. and their
officers, directors and affiliates, and with the knowledge and intent that they
will rely upon this certification in delivering the Certification required by
the pooling and servicing agreement relating to the Certificates (capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the pooling and servicing agreement), that:
1. I have reviewed the servicing reports or information relating to the trust
fund delivered by the special servicer to the servicer covering the fiscal year
2003;
2. Based on my knowledge, the servicing information in these reports delivered
by the special servicer, taken as a whole, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered by these servicing
reports;
3. Based on my knowledge, the servicing information required to be provided to
the servicer by the special servicer under the pooling and servicing agreement
for inclusion in the reports to be filed by the paying agent is included in the
servicing reports delivered by the special servicer to the servicer;
4. I am responsible for reviewing the activities performed by the special
servicer under the pooling and servicing agreement and based upon my knowledge
and the annual compliance review required under section 3.13 of the pooling and
servicing agreement with respect to the special servicer, and except as
disclosed in the compliance certificate delivered by the special servicer under
section 3.13 of the pooling and servicing agreement, the special servicer has
fulfilled its obligations under the pooling and servicing agreement in all
material respects in the year to which such review applies; and
5. The accountant's statement delivered pursuant to section 3.14 of the pooling
and servicing agreement discloses all significant deficiencies relating to the
special servicer's compliance with the minimum servicing standards based upon
the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing
agreement.
Date:
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[Title] ARCap Servicing, Inc.
EXHIBIT U
INITIAL COMPANION HOLDERS
EXHIBIT V
ARCAP NAMING CONVENTION
EXHIBIT W
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: Xxxxx Fargo Bank, National Association, in its capacity as Servicer
(the "Servicer") under the Pooling and Servicing Agreement dated as of
September 30, 2003 (the "Pooling and Servicing Agreement"), among the
Servicer, U.S. Bank National Association, as Trustee, and others.
Date: _________, 20___
Re: X.X. Xxxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-LN1
Mortgage Loan (the "Mortgage Loan") identified by loan number _____ on
the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and heretofore secured by the Mortgaged Properties identified
on the Mortgage Loan Schedule by the following
names:____________________ ____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement.
As Servicer under the Pooling and Servicing Agreement, we hereby:
(a) 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 entire principal balance of the
Mortgage Loan; or
____ a partial defeasance of a portion of the principal balance of
the Mortgage Loan that represents and, an allocated loan amount of
$____________ or _______% of the entire principal balance of the
Mortgage Loan;
(b) 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 Standards,
will have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
(i) 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.
(ii) The defeasance was consummated on __________, 20__.
(iii) The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by S&P, (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.
(iv) The Servicer received an opinion of counsel (from counsel
approved by Servicer in accordance with the Servicing Standards) that the
defeasance will not result in an Adverse REMIC Event.
(v) The Servicer determined that the defeasance collateral will be
owned by an entity (the "Defeasance Obligor") that is 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.
(vi) The Servicer received written confirmation of the crediting 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 a securities intermediary and has
been pledged to the Trustee.
(vii) The agreements executed in connection with the defeasance (i)
grant control of the pledged securities account to Trustee, (ii) require
the securities intermediary 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"), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) 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.
(viii) The Servicer received 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 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.
(ix) The Mortgage Loan is not among the ten (10) largest loans in
the pool. The entire principal balance of the Mortgage Loan as of the date
of defeasance was less than both $[______] and five percent of pool
balance, which is less than [__]% of the aggregate Certificate Balance of
the Certificates as of the date of the most recent Paying Agent's
Distribution Date Statement received by us (the "Current Report").
(x) [The Servicer has received opinions of counsel stating that the
Trustee possesses a valid, perfected first priority security interest in
the defeasance collateral and that the documents executed in connection
with the defeasance are enforceable in accordance with their respective
terms.]
(xi) 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.
(c) 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.
(d) 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.
(e) 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.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:______________________________________
Name:
Title:
EXHIBIT X
INFORMATION REQUEST FROM CERTIFICATEHOLDER, BENEFICIAL OWNER OR
PROSPECTIVE PURCHASER
[Date]
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Service Group - JPMCC Series 2003-LN1
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
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Pursuant to the Pooling and Servicing Agreement, dated as of
September [__], 2003 (the "Agreement"), by and among X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., as Depositor, Xxxxx Fargo Bank, National
Association, as Servicer, ARCap Servicing, Inc., as Special Servicer, U.S. Bank
National Association, as Trustee, and LaSalle Bank National Association, as
Paying Agent, with respect to the X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [Holder] [Certificate Owner] [prospective
purchaser] of $___________ aggregate [Certificate
Balance/Notional Amount] of the Class ____ Certificates.
2. The undersigned is requesting access to the information (the
"Information") on the Paying Agent's Internet Website pursuant
to Section 4.02 of the Agreement.
3. In consideration of the Paying Agent's disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as
are assisting it in evaluating the Information), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives in
any manner whatsoever, in whole or in part; provided that the
undersigned may provide all or any part of the Information to
any other person or entity that is contemplating the purchase
of any Certificate, but only if such person or entity confirms
in writing such prospective ownership interest and agrees to
keep it confidential; and provided that the undersigned may
provide all or any part of the Information to its auditors,
legal counsel and regulators.
4. The undersigned will not use or disclose the Information in
any manner which could result in a violation of any provision
of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Certificate pursuant to
Section 5 of the Securities Act or under any other applicable
law.
Capitalized terms not defined herein shall have the same meaning
ascribed to them 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.
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[HOLDER] [CERTIFICATE OWNER]
[PROSPECTIVE PURCHASER]
By:
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Name:
Title:
Telephone No.:
EXHIBIT Z
TRUSTEE CERTIFICATION/EXCEPTION REPORT
[DATE]
To the Persons Listed on the attached Schedule A
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2003-LN1
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of September 30, 2003 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as Depositor, Xxxxx Fargo Bank, National Association, as Servicer, ARCap
Servicing, Inc., as Special Servicer, U.S. Bank National Association, as
Trustee, and LaSalle Bank National Association, as Paying Agent, the
undersigned, as Trustee, hereby certifies that, except as noted on the attached
Trustee Exception Report, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or for which a Liquidation
Event has occurred) the Trustee has, subject to Section 2.02(e) of the Pooling
and Servicing Agreement, reviewed the documents delivered to it pursuant to
Section 2.01 of the Pooling and Servicing Agreement and has determined that (i)
all documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and the
required officer's certificate), if any, of the definition of "Mortgage File,"
as applicable, are in its possession, (ii) the foregoing documents delivered or
caused to be delivered by the Mortgage Loan Sellers have been reviewed by it or
by a Custodian on its behalf and appear regular on their face and appear to be
executed and to relate to such Mortgage Loan, and (iii) based on such
examination and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (iv),
(vi) and (viii)(c) in the definition of "Mortgage Loan Schedule" is correct.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Name:
Title:
TRUSTEE EXCEPTION REPORT
(Available upon request to the Trustee.)
TRUSTEE CERTIFICATION
SCHEDULE A
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
ARCap Servicing, Inc.
0000 X. XxxXxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Moody's Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of the XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Nomura Credit & Capital, Inc.
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE 1
[Reserved]
SCHEDULE 2
Mortgage Loans Containing Additional Debt
Loan Number ______ Property Name
1 Xxx Xxxx Xxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxxx
80 Whole Foods Xxxxxxxxxx
000 CVS - Xxxxxxx
111 Sav-On-LA
131 150 Technology
150 CVS - Commerce
SCHEDULE 3
[Reserved]
SCHEDULE 4
Mortgage Loans which Initially Pay Interest Only
Loan No. ______ Loan Name
55 000 Xxxxxxx Xxxx Xxxxx
00 000 Xxxx Xxxxxxxxx Place
112 0000 Xxx Xxxxxx
SCHEDULE 5
[Reserved]
SCHEDULE 6
One Post Office Square Mortgage Loan Amortization Schedule
(Refer to Annex C of the Propsectus Supplement)
